Thank This Klansman for Your Freedom of Speech

A TWO-BIT BIGOT'S SUPREME COURT VICTORY REVERBERATES IN CONTEMPORARY DEBATES.

- JACOB SULLUM

ON A SUNDAY evening in June 1964, about 20 men gathered at a farm in Ohio for a Ku Klux Klan rally. The event featured a cross burning, some stray racist and antisemitic remarks, and a short, desultory speech by a TV repairman named Clarence Brandenburg. The meeting was so small and inconspicuous that no one aside from the participants would have noticed it if Brandenburg had not invited a local television station to document his publicity stunt. But thanks to footage shot by a cameraman at Cincinnati's NBC affiliate, the rally triggered a police investigation that resulted in criminal charges against Brandenburg.

Five years later, that case produced a Supreme Court ruling that still reverberates in debates about the limits of free speech. The Court's 1969 decision in Brandenburg v. Ohio established a new, stricter constitutional test for government restrictions on provocative rhetoric. It was a boon to controversial speakers across the political spectrum. But Brandenburg's beneficiaries often ignore its strictures when confronted by opinions they abhor.

When President Donald Trump's critics said he should be held criminally or civilly liable for the speech he gave before the 2021 riot at the U.S. Capitol, for example, they had to choose between contending with Brandenburg and ignoring it. Trump himself faced the same choice when he launched his deportation campaign against international students with anti-Israel views.

In those cases, Democrats and Republicans tended to switch sides on the question of whether inflammatory speech should be punished. Similarly, progressives who defy Brandenburg by advocating restrictions on “hate speech” are apt to change their tune when the subject is lawsuits against Black Lives Matter activists, while conservatives who oppose the former may nevertheless support the latter.