Brandenburg v. Ohio (1969)

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.

Carlton Communications plc v The Football League (2002)

English Contract Law

Carlton Communications plc v The Football League
‘Football’ by Anthony Barrow

The phrase ‘subject to contract’ is pivotal to the preservation of legal rights, particularly when negotiating for multi-million pound contracts. On this occasion, the eagerness of a national sports fraternity overtook the urgency for a logical and constructive approach to long-term franchise agreements, resulting in an outcome none would have wished for.

In June 2000, the Football League entered into a contract for licensing rights with ITV Digital (or ONDigital as they were then known), who themselves were subsidiaries to both Carlton Communications Plc and Granda Media Plc. Having begun negotiations in April 2000, ONDigital were extended permissions to tender for contracts not exceeding £10m, whereupon this particular bid was now worth in excess of £240m, which therefore required the oversight of Granda and Carlton, but nothing more.

In a document titled ‘Initial Bid for Audio-Visual Rights Football League 2001/2 – 2003/4 ONDigital’ Executive Director Graeme Stanley expressed within the Financial Arrangements section, that:

“ONdigital and its shareholders will guarantee all funding to the FL outlined in this document.”

While noting that as with the remainder of the document, all statements therein were ‘subject to contract’ and therefore not binding upon any parties.

During the negotiation period, the value of the contracts increased to £315m, and at the point of their contracting, express notice was given in clause 18, which read:

“18. ONdigital and FL shall use their best endeavours to execute a long form agreement within 60 days which will be negotiated with reference to the Football League Pre-Tender Document of 27th March 2000…and will include clauses such as standard legal boilerplate, confidentiality, compensation for ONdigital if there are significant changes in competition structure which adversely affect the value of the rights granted to ONdigital, minimum broadcast commitments, quality guarantees for programmes and competitions and the like.”

In December 2001, talks began which centred around the alleged winding down of ONDigital, and so the claimants proposed that the defendants Carlton and Granda were now liable as guarantors for any sums due, which at the point of litigation, was little under £134m. As was expected, the defendants noted that while assisting as a parent company, at no point did they enter into a contract with the claimants, and as such, were not responsible for any ONDigital debts outstanding.

Relying upon the comments made in the pre-contract documentation, as well as a vague mention of guarantees in Clause 18, the court examined how corporate contracting and personal liability are distinctly different animals. With reference to principles espoused in Salomon v Salomon, Kerr LJ had himself expressed in JH Rayner (Mincing Lane) Ltd v Department of Trade and Industry how:

“The crucial point on which the House of Lords overruled the Court of Appeal in that landmark case was precisely the rejection of the doctrine that agency between a corporation and its members in relation to the corporation‟s contracts can be inferred from the control exercisable by the members over the corporation or from the fact that the sole objective of the corporation’s contracts was to benefit the members.”

While due reference was given to the Statute of Frauds 1677, in which s.4 clearly explains how:

“No action shall be brought whereby to charge the defendant upon any special promise to answer for the debt default or miscarriage of another person unless the agreement upon which such action shall be brought or some memorandum or note thereof shall be in writing and signed by the party to be charged therewith or some other person thereunto by him lawfully authorised.”

While it was further noted that in ‘Chitty on Contracts’, paragraph 4-022 stressed how:

“Apart from the exceptional case of a written offer signed by one party and accepted orally by the other, the writing must acknowledge the existence of a contract. It is now settled, after some hesitation, that a letter expressed to be ‘subject to contract’ is not in itself a sufficient memorandum to satisfy the statute.”

This rendered any argument for financial guarantee fatal to the claim, and left the court no choice but to exempt the defendants from all liability relating to damages for breach of contract, while holding that:

“[A] subject to contract proposal is the antithesis of or at the least incompatible with a unilateral offer. The former is not open to acceptance; it is the essence of the latter that it is.”