Brandenburg v. Ohio

US Constitutional Law

Brandenburg v Ohio
Image: ‘Freedom of Speech’ by Norman Rockwell

Freedom of speech and the right to incite action form the bedrock of the U.S. Constitution, however when threatened through state laws, the courts must preserve those liberties, even when used for immoral purposes. On this occasion, the propagation of racist and discriminatory rhetoric through a popular medium led to the conviction of a contributor, whereupon the defendant argued for his right to dissent.

In 1969, the now appellant was indicted and sentenced to a fine and imprisonment, after recorded television footage showed him partaking in a Klu Klux Klan rally designed to disseminate their plans for governmental challenge on grounds of perceived racial subjugation by Congress.

Under the terms of s.2923.13 of the Ohio Revised Code, and the now defunct Ohio Criminal Syndicalism Statute 1919, the appellant was charged with:

“Advocating the duty, necessity, propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform”

And:

“Voluntarily assembly with any society, group, or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism.”

Whereupon the appellant argued that such charges were in violation of the First and Fourteenth amendments to the Constitution, both of which read:

“(1) Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; of the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

(14)(1) All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Despite this inherent defence, the court unwaveringly held the conviction, after which the appellant sought the opinion of the Intermediate Appeal Court of Ohio, who again dismissed his contention outright. With presentation before the U.S. Supreme Court, the matter was naturally given greater consideration.

Having examined the footage and accompanying commentary, it was agreed that there was little to support the application of the 1919 statute when with consideration of the context in which the recording was made, there was insufficient evidence to suggest open advocation of violence, despite the presence of firearms and racially provocative speech amidst the poor quality of sound available.

It was this caveat which then drew early reference to cases such as De Jonge v. Oregon, in which the Court had held how:

“The right of peaceable assembly is a right cognate to those of free speech and free press and is equally fundamental”

That in turn led the Court to consider the relevance of the ‘clear and present danger’ test, as established in Schenck v. United States, where Justice Holmes explained that:

“The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree.”

And Abrams v. United States, where he again remarked:

It is only the present danger of immediate evil or an intent to bring it about that warrants Congress in 1832 setting a limit to the expression of opinion where private rights are not concerned. Congress certainly cannot forbid all effort to change the mind of the country.”

Both of which remained a judicial truism until Gitlow v. People of State of New York, where he concluded how:

“Every idea is an incitement. It offers itself for belief and if believed it is acted on unless some other belief outweighs it or some failure of energy stifles the movement at its birth. The only difference between the expression of an opinion and an incitement in the narrower sense is the speaker’s enthusiasm for the result. Eloquence may set fire to reason….If in the long run the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way.”

Thus showing renewed appreciation of the constitutional rights afforded all American citizens, even when the premise of such speech stems from divisive and unconstitutional rationales. It was for this reason that the Court uniformly held that the fundamental right to assert ones opinions, regardless of who may or may not be offended, must be safeguarded on the principle that anything less would be an invasion of liberty and a dismantling of the only platform upon which to express civil discontent.

Aldinger v. Howard

US Civil Procedure

Aldinger v Howard
Image: ‘Spokane Skyline’ by Pablo Romero

Litigation for loss of earnings through discriminatory dismissal is a linear process within state jurisdiction, however when the employer is a federal representative, the rules according to civil suits are subject to close examination.

Having enjoyed work as a cleric within the Spokane County Treasury, the claimant was dismissed under s.36.16.070 of the Revised Code of Washington (RCW), which grants that:

“The officer appointing a deputy or other employee shall be responsible for the acts of his or her appointees upon his or her official bond and may revoke each appointment at pleasure.”

Under a claim in the district court, the now appellant argued that dismissal merely for living with her boyfriend was a violation of the First, Ninth and Fourteenth Amendment of the U.S. Constitution, and that under the circumstances, the Treasury was equally liable under 42 USC § 1983 of the Civil Rights Act of 1871, which provides that:

“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress…”

It was for these reasons that an injunction was requested against the appointing officer and his wife, while the county was deemed subject to vicarious liability through the misconduct of the two named employees, both of which claims were brought under the powers of 28 USC § 1343(3), which explains that the district courts are required:

“(3) To redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States…”

When first heard, the court held that Spokane County could not be held liable as a ‘person’ and therefore no suit could be brought against them, after which the appellant sought relief through the court of appeals, who with reference to 28 USC § 1343(3), upheld the previous decision, however when taken to the U.S. Supreme Court, greater detail was paid to the doctrine of both ‘pendent’ and ‘ancillary’ jurisdiction, upon which the ruling in United Mine Workers v. Gibbs determined how the former provided that:

“[S]tate and federal claims must derive from a common nucleus of operative fact. But if, considered without regard to their federal or state character, a plaintiff’s claims are such that he would ordinarily be expected to try them all in one judicial proceeding, then, assuming substantiality of the federal issues, there is Power in federal courts to hear the whole.”

While the latter was outlined in Fulton Bank v. Hozier, when it was held how:

“The general rule is that when a federal court has properly acquired jurisdiction over a cause, it may entertain, by intervention, dependent or ancillary controversies; but no controversy can be regarded as dependent or ancillary unless it has direct relation to property or assets actually or constructively drawn into the court’s possession or control by the principal suit.”

However, on this occasion both approaches ran counter to the principle held in the appeals court that:

“[F]ederal courts should be wary of extending court-created doctrines of jurisdiction to reach parties who are expressly excluded by Congress from liability, and hence federal jurisdiction…”

This translated that while art. III of the Federal Constitution allowed the Supreme Court to vest adjudicatory powers to the lower courts, the conflicting principles of both 42 USC § 1983 and that of the appeals court prevented the Court from allowing a mergence of the two claims, despite their obvious connectivity, and which resulted in dismissal of the appeal while holding that:

“[A]s against a plaintiff’s claim of additional power over a “pendent party,” the reach of the statute conferring jurisdiction should be construed in light of the scope of the cause of action as to which federal judicial power has been extended by Congress.”