11/16/2017
Comparing and Contrasting:
Brandenburg v. Ohio and Citizens United v. FEC
INTRO
Freedom of speech is fundamental to a democracy. The right to voice criticism or speak out against the government without fear of consequence is guaranteed by the Constitution and tightly guarded by the courts. However, do circumstances exist where free speech should be limited? Two landmark U.S. Supreme Court cases answer this question. Brandenburg v. Ohio discusses the issue of whether the First Amendment protects the rights of the Klu Klux Klan. Citizens United v. FEC examines the role that corporations and labor unions can play in making political donations in the context of the First Amendment. This analysis seeks to compare and contrast these two cases by first providing an overview of each case that identifies the facts, issue, rule and question of institutional choice, then to argue how a common question of institutional choice should be answered differently, where the cases find common ground in support of individual rights and finally their modern implications.
OVERVIEW Brandenburg v. Ohio:
Brandenburg v. Ohio is a U.S. Supreme Court decision that questioned the reach of free speech under the First Amendment. The key issue in the case is whether Ohio’s criminal sydiciasm statute violates the First Amendment with the broader institutional choice being whether the political process or the courts are best suited to protect the First Amendment rights of the Ku Klux Klan. The rule being examined is the government’s ability to restrict First Amendment free speech if they have a good enough reason. Ultimately, the court upheld that,
“the constitutional guarantees of free speech and free press do not permit a State to forbid use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action” (Brandenburg v. Ohio 4).
The appellant, Clarence Brandenburg was the leader of a Klu Klux Klan chapter operating in Ohio. In 1964, Brandenburg invited a local news reporter to cover a rally his organization was participating in. During the rally, visibly armed KKK members were filmed burning a cross and making hate-filled speeches targeting Jews and African Americans. In one specific speech a KKK member exclaimed, “we’re not a revengent organization, but if our President, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, it’s possible that there might have to be some revengeance taken” (Brandenburg v. Ohio 2). This particular quote gained the most attention and subsequently led to Brandenburg being charged with advocating violence under Ohio’s criminal syndicalism statute: “advocat(ing) … the duty, necessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform’ and for ‘voluntarily assembling) with any society, group, or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism (Brandenburg v. Ohio 3). Brandenburg was charged and convicted, but he appealed his case based on its constitutionality and the conviction was ultimately reversed by the U.S. Supreme Court.
OVERVIEW Citizens United v. FEC:
Citizens United v. FEC is a highly controversial U.S. Supreme Court decision that removed the corporate ban on political campaign spending, meaning that corporations and unions could make unlimited amounts of campaign contributions if they are given independently of a candidate.
The issue in Citizens United was whether Congress had a very good reason for restricting corporate and union campaign expenditures in this way (Citizens United v. FEC, 8). The institutional choice is whether the political process or the courts are best suited to protect the the permissibility of corporate campaign expenditures (Day 24, P2). In other words, can the government prevent corporations or unions from donating to political campaigns? The rule in question is the First Amendment right to freedom of speech which the government is restricted from prohibited from restricting without very good reason.
The appellant, Citizens United is a conservative, nonprofit group that created and aired advertisements for the documentary, “Hillary: The Movie” during the 2008 presidential campaign which was in violation of the Bipartisan Campaign Reform Act or, McCain–Feingold Act. This law prevents corporations from spending money on “electioneering communications”. An “electioneering communication” being a, “any broadcast, cable, or satellite communication that (1) refers to a clearly identified candidate for federal office, (2) is made within 30 days of a primary election or 60 days of a general election, (2 U.S.C. § 441b), and (3) is publicly distributed (11 CFR § 100.29). The case went to the U.S. Supreme Court who ruled that, “money is not itself speech but the use of money to facilitate speech-including political campaigns-cannot be regulated without triggering the first amendment” (Day 24, Slide 2).
DIFFERENT INSTITUTIONAL CHOICES
Both Brandenburg v. Ohio and Citizens United v. FEC are cases of individuals rights which means that the institutional choice is between the federal courts and the political process. Despite this similarity, there is a significant difference in how these choices should be made. The issue in Brandenburg v. Ohio is best left to the federal courts and the issue in Citizens United v. FEC should be determined by the political process. In review, the question of institutional choice for Brandenburg v. Ohio is whether the political process or the courts are best suited to protect the First Amendment rights of the Ku Klux Klan. For Citizens United v. FEC it is whether the political process or the courts are best suited to protect the the permissibility of corporate campaign expenditures.
The greatest strength of federal courts is their insulation from direct political accountability and consequent ability to protect vulnerable minorities. In Brandenburg v. Ohio, the Klu Klux Klan could potentially qualify as a “vulnerable minority” and so require “protection” that “direct political accountability” can ensure. Understandably, this is an extremely inflammatory statement – to label this Ohio chapter of the KKK as a vulnerable minority group. Their beliefs are reprehensible. Hateful and racist speech is wrong, but it’s not illegal. Brandenburg shouldn’t be excluded from the freedom of speech privileges that the First Amendment guarantees everyone else.
While the federal courts are best suited to protect vulnerable minorities, the political process has a greater responsiveness to popular majorities because it has better access to information and expertise. In Citizens United v. FEC, there is a strong case for the political process because of how complex and far reaching a decision is that involves campaign finance reform. It then should not be a surprise that this case, “has proved to be one of the most unpopular Supreme Court decisions in modern history. Recent polls suggest that nearly 80% of U.S. adults disapprove of the decision” (Citizens United v. FEC, 1). The high disapproval of this verdict supports the notion that the political process is more effective for addressing complex and far reaching decisions.
SIMILAR INDIVIDUAL RIGHTS
Despite a considerably different set of facts and a near 50 year gap, these two cases are closely similar in their focus on individual rights, specifically the Supreme Court’s fierce protection of speech. Laws pertaining to any form of political speech are subject to intense scrutiny, which requires the government to prove that the restriction, “furthers a compelling interest; and is narrowly tailored to achieve that interest” (Day 24 – 7). This was the rule applied in Citizens United v. FEC where again, the issue was whether the Mccain-Feingold Act violated Citizens United’s First Amendment free speech rights. In the outcome of the case, the Supreme Court held that while Corporations do not have free speech right themselves, their shareholders do and therefore they cannot lose this right. (Day 24 – 2).
In Brandenburg v. Ohio, a consistently narrow rule was applied to the restriction of speech as was in Citizens United v. FEC. This rule creates a strict exception allowing the government to regulate/punish speech only if it is, “likely to incite, or produce lawless action” (Day 23 – 8). Although Brandenburg was found to be in violation of Ohio’s criminal syndicalism statute, the Supreme Court exerted the same strict scrutiny to restrictions of speech (and reversed his conviction) as they would do half a century later in Citizens United v. FEC.
The U.S. Supreme Court’s dedication to keeping speech free from restriction is a powerful reality for American citizens. Although a large majority of the country disagrees with the outcome of Citizens United v. FEC, it should be appreciated that preserving individual rights motivated the decision (though an argument exists that its long term effect might actually limit individual rights in the context of election voting). In Brandenburg v. Ohio, the Supreme Court demonstrated that even the most vile and disgusting speech is granted protection. This is a major win for individual rights.
MODERN IMPLICATIONS
Both these cases have substantial relevance to current issues in America. Free speech is a hotly debated topic right now. Many people are asking if “hate speech” is protected under the First Amendment. Since there is no agreed upon legal definition of “hate speech” this poses a problem. College campuses have found themselves on the front line of this debate. Last month, the UC Berkeley student body was outraged when a conservative groups invited right-wing speaker, Ben Shapiro to speak on campus. This led to violent protests and huge expenses for the campus police department who provided security. Should “offensive speech” be policed? Brandenburg v Ohio says no, unless it’s likely to “incite, or produce lawless action”. Given the U.S. Supreme Court’s track record in support of free speech, it’s unlikely today that any additional restrictions would be set on the First Amendment.
However, it is reasonable to believe that further campaign finance reform will occur in the near distant future. Citizens United v. FEC has led to limitless spending by super PACs which has flooded U.S. elections with money. Does this pose a threat to the american democratic process?
Conclusion
Freedom of speech is fundamental to a democracy. The right to voice criticism or speak out against the government without fear of consequence is guaranteed by the Constitution and tightly guarded by the courts. However, do circumstances exist where free speech should be limited? Two landmark U.S. Supreme Court cases answer this question. Brandenburg v. Ohio discusses the issue of whether the First Amendment protects the rights of the Klu Klux Klan. Citizens United v. FEC examines the role that corporations and labor unions can play in making political donations in the context of the First Amendment. This analysis seeks to compare and contrast these two cases by first providing an overview of each case that identifies the facts, issue, rule and question of institutional choice, then to argue how a common question of institutional choice should be answered differently, where the cases find common ground in support of individual rights and finally their modern implications.
WORK CITED
Coan, A (2017). Public Law. [powerpoint slides/readings]
Retrieved from https://d2l.arizona.edu/d2l/home/616661