It Is Dangerous to Be Right When the Government Is Wrong - Andrew P. Napolitano [35]
Despite the Supreme Court’s earlier deference to the unconstitutional actions of the legislature and executive, in 1969 it did an about-face and began to move toward the proper protection of speech as nearly absolute. Clarence Brandenburg, an Ohio Ku Klux Klan leader, invited a Cincinnati reporter to cover a Klan rally in Hamilton County, Ohio. The events filmed by the reporter show several men in robes and hoods with firearms while burning a cross and making a speech. The speech included reference to the possibility of taking “revengeance” against “niggers,” “Jews,” and those who supported them.8 Brandenburg called for a march in Washington, D.C., on July 4th 1964, and was subsequently arrested under Ohio’s criminal syndicalism statute. The Ohio statute, enacted during the Red Scare in 1919, intended to punish those who advocate “crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform.”
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Brandenburg received a one-thousand-dollar fine and ten years in prison. He appealed his conviction all the way to the Supreme Court, which issued a monumental decision. The Court found the Ohio statute to be unconstitutional because it punished “mere advocacy” of unlawful action. According to the Court, and what is still current law, the United States Constitution does not allow the federal government or state governments to proscribe mere advocacy of the use of force or unlawful action, “except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”9 Neither the federal government nor the state governments can pass laws to silence offensive or inflammatory statements that are not likely to result in imminent lawless action, or in other words, violations of natural rights. All innocuous speech, the Court declared, is absolutely protected. And all speech is innocuous when there is time for more speech to resist it.
Free Speech in Political Elections?
Despite the merit of Brandenburg, the battle over freedom of speech has raged forward. Today, the factual nature of the cases is significantly different than Brandenburg or Schenck, but as any natural rights advocate can recognize, the principles are the same. We know that individuals have a natural right to free speech, and only through due process can this right be stripped. But what about groups of individuals who choose to express themselves collectively?
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Take, for example, the publicly condemned holding in Citizens United v. Federal Election Commission (2010). The Supreme Court invalidated a sixty-two-year-old statute prohibiting corporations and labor unions from utilizing general treasury funds to support or defeat a candidate in the sixty days preceding an election. The majority opinion, written by Justice Anthony M. Kennedy, held that the First Amendment does not allow for the government to distinguish between speakers in order to determine who can voice their support for political candidates. As Justice Kennedy wrote, the First Amendment “has its fullest and most urgent application to speech uttered during a campaign for political office.” Moreover, the fact that one speaker may have more wealth than another does not necessitate a ban on speech.10 Bill Gates most likely has more money than you and I combined, but a ban on his speech simply on account of his wealth would be patently unconstitutional.
As this book is being written, political opposition to Citizens United is mounting, threatening to undo its progress. Opponents of the decision claim there will be corruption in the electoral process, as individuals’ opinions will be overshadowed by corporate prerogatives, and the holding will lead to a future in which the President is chosen by the Board of Directors of General Motors. (Ironically, it is far more likely today that the President will choose the Board of Directors of General Motors than the other way round. But that is for a later