American History / Supreme Court Case Brandenburg V. Ohio

Supreme Court Case Brandenburg V. Ohio

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Autor:  anton  22 March 2011
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Brandenburg v. Ohio

The Supreme Court uses various criteria for the consideration of cases. Not all cases may be chosen by the Supreme Court, so they must wisely choose their cases. The Court must be uniform and consistent with the cases they choose according to federal law. “Supreme Court Rule 17, ‘Considerations Governing Review on Certiorari’” (Rossum 28).These rules are obligatory to follow because the Court uses it to grant certiorari. There are four basic rules for Rule 17. First, the Supreme Court must decide if there are any important questions on Federal Law in this case that the Court has not seen or ruled on yet. Secondly, the Court must determine if any lower courts have had any conflicting interpretations of the Federal Law. Third, they must determine if any decisions made by the lower courts conflict with any previous Supreme Court decisions, and lastly, they must check the “lower court departures from the accepted and usual course of judicial binding” (Rossum 28).

Sometimes the Supreme Court will look at the importance of the case as well. When there is disagreement between lower courts, the Supreme Court will read over the case and see if there is something in this case that may be of great concern to the nation, area, sex, race, etc. Also, the Supreme Court may deny a case depending on the effect of the case in the long-run. A good example of this is when cases were sent to the court to challenge whether or not the Vietnam War was constitutional. The court as always tried to be neutral and avoid any kind of negative involvement, especially in political disputes, and for this reason they would negate any cases on the Vietnam War. Also, and this is more over the last criteria for determining a case, the Court tries to avoid any unnecessary inflammation of the public’s opinion. The Court’s do this by limiting the amount of issues that may cause controversy to the public. They consider the publics reaction in choosing cases in order to broadcast their vital rulings (Rossom 29).

Once the case reaches the Supreme Court, the lawyers of each side must file legal briefs. Legal briefs are written partisan documents that are used to convince the Court to vote for the position they hold. After the Justices of the Supreme Court have read these legal briefs, it is time for the oral arguments to begin. Lawyers are usually given around thirty minutes to, once again, persuade the Court to vote for them, but also to explain the legal briefs they have given them. Also, the Justices of the Court may ask questions on the case in order to determine the accuracy of it. Once all of this is done, the Justices meet privately to discuss all of the information they have been given. The Justices may not use personal opinion because they must vote based on how this case conflicts or abides to the constitution. Once their discussion comes to a close, they have their oral votes. Oral votes are cast from the newest member of the Court to the eldest. But once these oral votes are held, the case is still up for debate. The Justices have even more discussion on the case, and comparable or contrasting opinions are written down to help the Court confirm what they have originally voted for, or possibly get them to change their vote. This is to help the Justices reach a final verdict, and once each of them have made their final vote, they converse once again with each other to explain why they voted the way they did. Once they do this, if there are any other intracourt discrepancies, they try to resolve the issues. And finally, a final verdict is reached based on majority rule and it is announced to the court (Rossom 30-32).

The majority opinion is basically the opinion that the majority had in the case. If a vote was cast 7-1, the majority would be seven, obviously. These seven justices met together before the final vote to discuss their opinions and make sure they were correct. The dissenting opinion would be that one, who doesn’t agree with the majority, and they too discuss their opinion so that they may be able to convince the majority to switch their opinion. So, if a vote is 5-3, the majority vote is five and the dissenting vote is three (Rossom 33).

Brandenburg v. Ohio occurred in 1969. Brandenburg was a Ku Klux Klan leader who organized a rally in Hamilton County, Ohio. Brandenburg called a reporter in Cincinnati before the rally to broadcast the event he was holding. Around twelve members of the Klan attended the event, at which they burned a cross. Brandenburg was clothed in a full Klan uniform and delivered a speech stating, “We’re not a revengent [sic] organization, but if our President, our Congress, our Supreme Court, continue to suppress the white Caucasian race, it’s possible that there might have to be some revengence [sic] taken” (Brandenburg Great). During the rally, the roughly twelve members yelled racist comments and also wanted all Jews to be sent back to Israel (Brandenburg Great).

The two reporters taped the entire thing and broadcasted it on the local news. Because of this tantrum, Brandenburg was charged and convicted of violating Ohio’s Criminal Syndicalism Act. This act became law in 1919, and it basically stated that it was unlawful for organizations to voluntarily assemble to provoke violence, terrorism, etc, in order to accomplish industrial or political reform. This shenanigan that Brandenburg held was an obvious violation of this law. Brandenburg realized that this law is actually a violation of his right to free speech stated in the First and Fourteenth Amendments. He appealed to the appeals court, and they agreed without even having to offer an opinion. Brandenburg then appealed to the Ohio Supreme Court, but they did not agree with Brandenburg. They rejected his appeal because the Ohio Supreme Court believed there weren’t any real constitutional issues involved. The Court did not file an opinion or even explain their claim. The appeal was then taken to the Supreme Court, and they took it because their seemed to be probable jurisdiction (Brandenburg Great).

The majority opinion of the Supreme Court was a Per Curiam, which means it was issued by the Court as an institution instead of being issued and signed by an individual justice. The Per Curiam decided to reject the Ohio Criminal Syndicalism statute, stating that it goes against the first and fourteenth amendments. It cited an earlier case which was Whitney v. California, in which California’s Criminal Syndicalism statute was also rejected because it too went against the first and fourteenth amendments. The Per Curiam decided to try for a new test called the imminent lawless action test. Earlier decisions such as Whitney v. California, Dennis v. United States, and Cf. Fiske v. Kansas all played vital roles in this ruling and the imminent lawless action test. This test basically stated that free speech and free press cannot allow a state to inhibit or disallow support for the use of neither force nor law violation unless the support is stirring or producing imminent lawless action and seems plausible that it could quite possibly stir or produce these actions. There are three major elements to this test though, which are intent, imminence, and likelihood. You could no longer be arrested or charged for just saying bad things about something or someone. It disrupts our freedom of speech, and then it would basically make it illegal for people to say bad things about people or the government. That is also why they overruled this case. If they were for this case, which was solely on the basis of a man shouting offensive comments to black people and Jews, then presidential hopefuls would not be able to bash each other to win the nomination (Brandenburg Find).

The only concurring opinion in this case was Justice Hugo’s Black concurrence with Justice William O. Douglas. They basically agreed upon the fact that “no law”

(Brandenburg Find), which is stated in the First Amendment, should in fact be taken very literally. Also all speech is impervious from prosecution. Douglas specifically cited the case of the United States v. O’Brien. O’Brien was convicted of burning is draft card, but Douglas disagreed with this case saying O’Brien’s action was legitimate and all he was trying to do was prove a point, which most definitely deserves First Amendment protection, as does this case. He believed that Brandenburg was trying to convey a message to the public, so he deserves the same protection. Black concurred with Douglas’s remarks (Brandenburg Find).

Amicus Curiae is Latin for friend of the court. Amicus Curiae is when a person voluntarily offers information on a specific point of law or on a different facet of the particular court case, and is also usually sent by someone who believes that the decision made by the court may indeed affect its own interests. It is used to aid the court in deciding on the outcome of the case. The decision to admit the Amicus Curiae relies solely on the Courts approval. They can choose whether to admit this piece of information, or to deny its request. The Curiae can either be a legal brief, which is a testimony that has not been solicited by any of the parties present in the case, or by a learned treatise, which is any kind of information that abide to the case. For the most part, cases that could possibly have quite a bit of controversy will be more likely to submit more Amicus Curiae briefs than other cases (Rossum 31).

Whitney v. California is a very related case to Brandenburg v. Ohio. Charlotte Anita Whitney was a woman from California was convicted in 1919 of violating California’s own Criminal Syndicalism Act. Evidently, she was trying to establish a Communist Labor Party. This group was apparently stanch to teach people the violent ways of overthrowing the government, or at least that is what the state of California believed. Whitney stated that this was not what she had in mind, rather it was just another group trying to make a statement. She was convicted, but she appealed to the Supreme Court. She believed that this violated her right to freedom of speech protected by the Fourteenth Amendment. In the end, however, the Supreme Court sided with the state of California in a 9-0 unanimous vote (Tedford).

Since this was a unanimous vote, there were no dissenting opinions, but there was a seven person majority opinion, as well as a two person concurrence. Justice Sanford wrote for the majority opinion, and he stated that Whitney took the clear and present danger test, but then also took it even further than that. Sanford believed that if someone provoked crime or danger, perturb the public, or threaten to overthrow the government, than the state has a right to punish those people (Tedford).

Justice Louis Brandeis wrote a concurrence that was joined by Oliver W. Holmes. Although this concurrence sounds like a complete dissenting opinion, it really is not. Brandeis believed that we should defend the freedom of speech. He believed that freedom of speech and a democratic government go hand in hand and must work together. The job of a citizen is to criticize the government. The only way they can do this is if they have freedom of speech. If they do not have this freedom, citizens will be in fear and will not speak their mind. This is a democratic government in which all voices must be heard, he believed. He also stated that the government must set a boundary of what is actually a dangerous and provocative speech, and what is legal. He believed because Whitney established a Communist Labor Party, which is very unpopular, was the main reason why this conviction was upheld. He believed that in the future, unpopularity cannot be the reason to convict someone (Tedford).

This case actually played a pivotal role in Brandenburg v. Ohio, especially this concurrence written by Justice Brandeis. This concurrence is what led Justice Black and Douglas on their stands on freedom of speech. Because of this case, they believed that the freedom of speech is completely protected under the First Amendment. For this reason, Whitney v. California was overruled and Brandenburg v. Ohio was reversed (Brandenburg Great; Tedford).

Works Cited

“Brandenburg v. Ohio.” Find Law for Legal Professionals. 30 October 2007 <http://caselaw.lp.findlaw.com>

“Brandenburg v. Ohio.” Great American Court Cases. 1999. 4 vols. Student Resource Center. Gale Group Databases. Cardinal Gibbons High School Lib., Raleigh, NC. 30 October 2007 <http://www.infotrac.galegroup.com>.

Rossum, Ralph A. and G. Alan Tarr. American Constitutional Law: Cases and Interpretation. New York: St. Martin’s Press, 1983. 28-33.

Teford Thomas L. and Dale A. Herbeck. “Whitney v. California.” Freedom of Speech in the United States. State College, PA, Strata Publishing Inc., 2005. 5 December 2007 <http://www.bc.edu>.



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