BRANDENBURG v. OHIO

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Argument of Allen Brown

Chief Justice Earl Warren: Number 492, Clarence Brandenburg, appellate versus Ohio.

Mr. Brown.

Mr. Brown: Mr. Chief Justice, members of the Court.

We have before us case arising in the State of Ohio under a conviction under Ohio's Criminal Syndicalism Act.

We have indeed before us something of rarity.

It is as far as I know a third case ever tried under Ohio's Criminal Syndicalism Act and the first to ever reach the appellate level.

I -- there was earlier in Ohio when their peculiar proceedings in which a prosecutor could bring a proceeding before the Supreme Court on appeal for a question of law only.

A proceeding in which -- a motion was made in the lower court in Ohio, attacking the constitutionality of Ohio's Criminal Syndicalism Law.

The lower court in Ohio held the law to be unconstitutional.

It was appealed to the Supreme Court in State versus Kassay and in what is basically in advisory opinion.

The Court stated that it was constitutional.

If the Court also stated several engaging other things.

It stated that the First Amendment did not apply to the states of the union.

It also stated that the measure of its application was an issue in its constitutionality and it would attend the first trial of a case to see what is the proper measure of its application.

The Court waited patiently for the first application to a case that arose some 40 years later in this case and surprisingly despite the invitation here sent out in Kassay, the Court declined to even hear his constitutional question on the application in this case.

It in fact defaulted to this Court, Ohio's privilege are setting forth the limitations of the application of its statute.

Ohio's privileges are setting forth potentiality of clarification and delineation of a statute which obviously on its face rushes head long into the First Amendment.

These are the facts in this case.

A television reporter receives a telephone call indicating that if he wanted to he could come and take movies of a Ku Klux Klan meeting.

He came.

He met some hooded figures and arrangements were made for the taking of a movie.

A movie was taken in which a cross was burned, some figures milled about, and yelled some stupid and rather, a senseless slogans and then a single figure was panned on, and he made a speech, a speech full of conditions, precedents, and reservations, hyperbola self-evidently stupid and silly.

The --he asserted that the clan was the largest organization in the State of Ohio.

He then went on in a -- with a condition precedent that if the various branch is the Government including this Court, do not mend their ways that revengeance, a word of his own coining I assume would be taken.

He did not specify the revengeance and we do not know what particular aspect of the democratic process he was going to involve himself in revengeance.

He then spoke of a March not in identifying it as an armed march or any sort of march of any force or violence into Washington and then into two southern states, incidentally, raising federal questions perhaps rather than internal state questions.

Another film taken is inside the house --

Justice Potter Stewart: There were guns?

There were guns in this first --

Mr. Brown: There were guns in both films.

Justice Potter Stewart: -- in both of them, wasn't it?

Mr. Brown: In both films.

There were guns.

It is also to be noted that the film was taken on a remote, private farm in which apparently there is no evidence whatsoever that these people were not invitees present on that farm by authority of the ownership of the farm.

There was nothing, nothing adduce an indictment was returned, I have to some preliminary move, maneuvering including a frontal attack on the constitutionality of a statute.

The case came on to trial.

The state produced nothing but the film in question.

The only other evidence that the state produced was basically geared to identifying the personnel involved in the film.

In other words, showing that the man Brandenburg had a gun similar to the guns in the film and that he had markings on his person similar to the markings and that his voice was similar.

Other than this, the state offered nothing.

It is critical that the state offered nothing on the nature and history of the Klan.

It offered nothing showing that the course of the Klan's history any continuing historical or expert opinions concerning any possible commitment to violence.

It offered nothing on the continuing organization of the Klan, nothing whatsoever.

It offered nothing other than the film itself and the words intrinsic in the film itself.

The state then rests the defense in which I was not involved.

I'm appoint of counsel -- appointed for purposes of appeal.

Made a motion for dismissal at that time, I will frankly admit that the motion for dismissal which was made by then counsel was simply our weight of evidence motion and he did not specifically denote the constitutional question that had arisen at that point in the presentation of the state's case.

I suggest that it is completely immaterial but he did not.

The defense then preceded forward and offered basically a defense of the positive testimony in which various members -- officers of the Klan testified as to their ostensible peaceful purposes and things of this sort and the historical evaluations of the presence of weapons and the burning of a cross.

The Court then charged the jury.

The Court's charged the jury and I specifically asked this Court to consider it carefully.

Begins in the appendix at page 72 and met with the statute that thrust itself clearly within the First Amendment makes on its face no attempt to give us a life indication of a line demarcation between the mere abstract teaching in advocacy or even advocacy in relation to a clear and present danger as to advocacy in a hypothetical sense.

That in no way on its face does this.

The Court perpetuated the evil of the statute by making the charge even more general, in which he indeed define the term advocacy as involving intrinsic in it in his own charge.

Teaching, so that we have at this point a man who had been tried with none of the safeguards of the First Amendment applied to the trial of his cause to the measure of his evidence or to the instructions to those who worked to be the triers of the fact which would demarcate the point at which the First Amendment would be operative in relation to what happen on that isolated farm on that isolated day.

Justice John M. Harlan: How large was this meeting?

Mr. Brown: The pictures, the testimony and the pictures indicate that perhaps 20 persons were involved.

Justice John M. Harlan: Any spectators --

Mr. Brown: No spectators.

All were participants in the meeting.

There is some indication of the record that there were no woman folk in the picture or in the meeting.

There are some testimonies in the record that one of the TV reporters said he heard, women's voices in another room.

I know nothing else about the woman folk in that occasion.

Justice John M. Harlan: The film is recorded?

Mr. Brown: Pardon, Your Honor?

Justice John M. Harlan: The film under exhibit?

Mr. Brown: The film is an exhibit.

Justice John M. Harlan: It's here in the Court?

Mr. Brown: I pray it is.

I have so ordered it and at my last words from the clerk was that they were having trouble finding it but they would find it and send it on up here.

I devoutly pray because we do have in this case some issues as to what is shown in the film and since --

Justice Hugo L. Black: Is there -- is there a dispute between the parties here as to whether there was or was not a call to engage in by all means?

Mr. Brown: Yes.

Justice Hugo L. Black: There is a dispute --

Mr. Brown: There is a distinct dispute.

It is our contention that there was nothing in the speech which is part of the record and it is shown in the film and since the state limited itself to this.

There is nothing in it that is a called twice --

Justice Hugo L. Black: And -- and your adversary disputes that?

Mr. Brown: I assume my adversary disputes that.

Justice Potter Stewart: The State's whole case was the film plus the identification of the defendant as the person shown --

Mr. Brown: That's correct.

Justice Potter Stewart: -- in the film, is that right?

Mr. Brown: And the language of the film is actually in both parties' briefs.

The difference between us is that they tend to ascribe certain slogans by the person's billing about to the given defendant.

We contend that the only words that the given defendant are ordered with the formal set of speeches.

Justice Potter Stewart: This film was shown over a local television station and in a network, wouldn't it?

Mr. Brown: This film was shown over a local television station and a network.

Justice Potter Stewart: In a network?

Mr. Brown: That's correct.

Justice Potter Stewart: Who is the trial judge?

Mr. Brown: Judge Simon Leis.

Does it ring any bells, judge?

Justice Potter Stewart: Yes, it does.

Mr. Brown: Okay.

Justice William J. Brennan: Mr. Brown, I gather the indictment however was for the events, is that right?

Was the events depicted in the film, not for the exhibition on the film, was it?

Mr. Brown: That is correct.

Justice William J. Brennan: In other words, all the film was in evidence was depicting what happened on a certain day.

Mr. Brown: That is correct.

Justice William J. Brennan: And that's because of what happened, it was alleged that there been a violation of statutes.

Mr. Brown: That's correct.

The act of showing it over television which entered the plea and intervening parties, the authorities running the television station are not the basis of the indictment --

Justice William J. Brennan: That's was, yes.

Mr. Brown: -- and the charge.

Justice William J. Brennan: So that I gather, if we're to read to the record of the case.

We have to see the film, though, to know what the truth were that --

Mr. Brown: Precisely.

As a matter of fact in the Supreme Court of Ohio, we didn't raise it here because we wanted to see if we can make sure that we get assert -- we asserted that the film was in the same position as a book in an obscenity case.

Justice William J. Brennan: Oh, that doesn't help you?

Mr. Brown: I know it doesn't help us now but at that point when we before the Supreme Court of Ohio, we have asserted that saying that the film in and of itself is the entire context of the alleged offense.

Justice William O. Douglas: I don't understand your point that, nobody but the audience was being people of members of the group were being addressed, I don't see the relevance.

The reason I asked that is in the Dennis case, Dennis versus United States, involving the prosecution of communist teachers who talked the Marxist creed.

Nobody was exposed except the students in the classroom.

Mr. Brown: May it please the Court.

There is this important distinction to be made between the Dennis case and that case.

In the Dennis case, the teachers who taught these classes, this was evidence within a total context of a total conspiratorial activity leading to a total action result.

In this instance, the state contented itself merely was showing a given speech and did not choose to present any evidence to make it part of a conspiratorial whole.

It took the speech in and of itself that represented only --

Justice William J. Brennan: Now, that's why I asked you earlier, the indictment was for the events depicted.

Mr. Brown: That is correct.

Justice William J. Brennan: Not for the showing and the motion that your --

Mr. Brown: That is correct.

Justice William J. Brennan: -- the context of conspiracy or anything else.

Mr. Brown: That's correct.

Justice William J. Brennan: It's just what happened in that --

Mr. Brown: What happened on that farm on that day and that is the important distinction to be made.

Justice Abe Fortas: Did this appellant have anything to do with arranging for the events to be televised?

Mr. Brown: There is evidence in the record that indicate that his was the voice that called the radio, TV announcement.

Justice Abe Fortas: Well, if that is so then its pretty -- then it's debatable whether this was addressed only to the people who were physically there.

Mr. Brown: That maybe the case Judge -- Justice Fortas.

Justice Abe Fortas: (Voice Overlap) Yes, if he had arranged the Court --

Mr. Brown: I think that however the State of Ohio chose not to charge him for that.

Justice Abe Fortas: But they have arranged before it to be televised presumably he intended that his remarks reached a larger audience.

Mr. Brown: It's quite potentially possible.

This is however not what the state chose to charge him on, read the indictment and --

Justice William O. Douglas: If the Court can take judicial notice that the communist party was conspiratorial out to conquer the world, why couldn't the Court take notice that the Klan is up to no good?

Mr. Brown: In the Dennis case, I submit that the Court did not take such judicial notice.

That in the Dennis case as a matter fact, there was the adoption of evidence to show that.

Justice William O. Douglas: I think this may be taken some liberties help through the record of the Dennis case --

Mr. Brown: But in any event --

Justice William O. Douglas: -- it has to know.

Mr. Brown: In any event, it is clear that in the Dennis case there was additional evidence other -- over and above that adduce in this case.

In this case, they showed nothing but the film itself.

They showed no other plan or purposively other than that.

Justice William O. Douglas: So as far as you ask us to view of this case as if it were just a group of school boys, hooded school boys seating in a room listening to --

Mr. Brown: That is a potential distinction between this case and the Dennis case as well.

These are paltry unknown rather silly characters.

In the Dennis case, we're dealing with the established leadership of a national organization.

This does make a difference in relation to the rights prevailing under the First Amendment.

The -- but in this given case, there are other distinctions which I'll pass to in a moment.

In this given case, we are dealing with a statute which on its very face thrust itself into the First Amendment.

We are dealing in this situation, not with an address to an evil from which we must move back to a possible restraint upon First Amendment for there's a dealing with an entry particularly into the right and then a prescription upon the right as it might engender an evil.

For instance, the statute starts off.

No person shall by word of mouth or writing at the gate or teach the duty and goes on from that point.

It denotes First Amendment here we come.

It does not say that no person shall not advocate or teach the duty and necessity of propriety of crime.

It does not then become so broad that it could possibly take symbolic acts or acting out that go beyond mere words of mouth and printing.

It announces wholly, here we come First Amendment and proceeds from that point on advocate or teach.

Now, the prosecution in this case has said that the issue of teach is not involved here because the man was charged only under advocacy but if the distinctions between teaching an advocacy was so simplistic, we would have a very simple solution in this case.

But as a teacher, who teaches in the first grade that the American Revolution was a noble thing, is she merely teaching or is she advocating?

The lines of demarcation between teaching an advocacy are so difficult that they leave us vulnerable when we charged advocacy alone.

In order to reserve a portion of my time for rebuttal, I would like to point out however, what I think is the most absurd aspect of this particular statute.

It also forbids not only speech or printing.

It becomes very, very evasive on the whole question of intent scienter and mens rea, think carefully.

It comes very, very unclear on the whole area of willfulness except for occasional phrase in multiplicity of phrases.

In addition to which, it forbids the assembly with any group and it forbids not only membership by problem that is been before this Court.

Not only affiliation of problem to this Court but indeed even forbids seating down with such group in an error in which they are trying to preserve the dialogue benefits to society of the First Amendment.

It is incredible that the legislature of Ohio forbids us even to seat down.

Justice Byron R. White: Well, I gather Mr. Brown that apart from your argument addressed to the statute itself, divorce from the actual prosecution here.

You do argue don't you that the First Amendment considerations are so close to the surface and the prosecution under such a statute that at the very least that required an instruction which was not given here.

Mr. Brown: That's correct.

Justice Byron R. White: It's recognized of and if we agree with you on that score, I gather we don't have two reach the question of the constitutionality of the statute itself, do we?

You'd rather we did but --

Mr. Brown: I certainly would prefer that you did, however --

Justice Byron R. White: But we don't have to if we strike it down and it (Inaudible).

Mr. Brown: This Court could potentially strike this down, not merely on the instruction but indeed on the face of the record that it is not constitutionality sufficient to constitute an offense.

Justice Byron R. White: You mean on the evidence.

Mr. Brown: On the evidence.

This Court has those alternatives, I cannot escape.

Justice William O. Douglas: What do you say to the --

Mr. Brown: However, I offer this posture that the defendant in this cause asserted that he was not tried by a motion to quash the indictment and at this Court perhaps must assume his posture and find that he should never had been brought to trial into that -- under those circumstances.

Justice Byron R. White: I know what's before us is a conviction in this case.

Mr. Brown: What's before you in the entire --

Justice Byron R. White: And if we agree reverse the conviction, I take that is much as you're entitled to it.

Mr. Brown: I don't from work --

Justice Byron R. White: I know.

Mr. Brown: -- the intake.

Justice William O. Douglas: I wonder what you say to this statement on page 6 of your brief.

Mr. Brown: This is our brief Your Honor.

Justice William O. Douglas: Of your brief that, “We are marching on Congress July the Fourth, four hundred thousand strong.”That seems to tie this group into a rather big national movement.

Mr. Brown: May it please the Court.

Let me several things concerning --

Justice William O. Douglas: Then they go on and they say, “The Jewish should go back to Israel and blacks should go back to Africa.”

The whole program seems to be pretty clear.

Mr. Brown: How do we know this is a program?

How do we know --

Justice William O. Douglas: I mean just saying from -- if you believe what they say what the speaker says.

Mr. Brown: If you believe what the speaker says, this absurd hyperbola is a program.

However, the program is a program of ostensible social reform but does not necessarily indicate on the face of his remarks an intent to violence or to commit a crime.

I agree with the Court, it is assert --

Justice Thurgood Marshall: Oh, how else -- how else is he going to persuade some people to go back there without a violence?

Mr. Brown: I assume that he's offering this.

I agree that he -- we are operating within an absurd premise.

Indeed, the absurdity itself may mitigate against the clear and present danger.

But let us assume that he means by this that we will now bring (Inaudible) Congress to repeal the Fourteenth Amendment and to pass an Amendment saying that persons of certain ethnic background are no longer eligible for citizenship in United States.

He may be calling upon absurd, horrible, frightful, possible processes of law but they might still nevertheless be processes of law.

There is nothing in the standard that indicates his --

Justice Thurgood Marshall: Not against something that will go back that then you can believe more that change the law.

Mr. Brown: I have -- I'm afraid that if such law were passed.

It might very well leave us in the position, Justice Marshall, a finding that perhaps under certain circumstances, it is necessary to advocate violence to redress abuses of law.

Chief Justice Earl Warren: Mr. Brown, before you seat down.

I've inquired of our clerk as to whether or not the film is here.

He advises me that it is not here.

Mr. Brown: I know --

Chief Justice Earl Warren: Would you just tell us what efforts you made to get it here?

Mr. Brown: Certainly.

Upon the filing of this matter I went to the Clerk of the Supreme Court and ordered a transcript of the entire record.

The Clerk of the Supreme Court indicated to me that since cert was not allowed that portions of the record were still with the Court of Appeals.

I went to the Clerk of the Court of Appeals and ordered for him an entire record specifically in my press be asking for the film.

We then actually engaged in physical search for the film.

It had last in the possession of Sheriff Dante.

Dante went to his safe and couldn't find it but this clerkmanship of the entire remainder of the record and indicated to me he would continue to search for the film and upon receipt of the same would forward it to this Court.

I have not checked further.

I will upon my return to Cincinnati immediately check further with the Court.

Chief Justice Earl Warren: Well, maybe counsel could answer it better than you could --

Justice Abe Fortas: Mr. Brown, we don't have anywhere a complete transcript of what was said in the film either, do we?

Mr. Brown: Yes, you do.

Justice Abe Fortas: Where is that?

Mr. Brown: In the appendix on pages --

Justice Potter Stewart: 24, 25?

Mr. Brown: -- 24 and 25.

Justice Abe Fortas: Is that all?

That's not all that we assume because --

Mr. Brown: And there is a second portion on the second --

Justice Abe Fortas: No -- no, I mean to say, is there anywhere were we can look and see what -- what's in that film from the first word to the last word?

There's one thing to read these things, an excerpt is taken here and that's not maybe quite another thing to read it consecutively.

Mr. Brown: In the --

Justice Abe Fortas: Does that appear anywhere?

Mr. Brown: Yes, in the appellant's brief.

Justice Abe Fortas: Where?

Mr. Brown: On pages 5 and 6.

Justice Abe Fortas: Now -- now, is that --

Mr. Brown: That describes in full but one film and then in effects synopsizes the second film.

I believe that the dispute is to the content of the second film.

Justice Abe Fortas: You mean, as the -- on pages 5 and 6, can we read that and after we read that, do we have the full text of the transcript of the film.

You give me what the first word and the last word.

Mr. Brown: Of one interpret of it --

Justice Abe Fortas: Now, what about -- now --

Mr. Brown: There are two films --

Justice Abe Fortas: Alright now, how about the second?

Mr. Brown: The second film is indorsed -- is basically the same as the speech made -- the speech portion of the first film.

The man apparently repeated basically the same words with some admonition and some additions.

These admonitions and additions are substituted -- are indicated in the brief and both prosecutions of defense agreed that this is actual statement of the second.

The only questions are assuming the first.

Chief Justice Earl Warren: Mr. Kirschner.

Would you mind stating if you can while the film itself is not to here but it is important as Mr. Brown has stated.

Argument of Leonard Kirschner

Mr. Kirschner: Mr. Chief Justice and Honorable members of this Court.

I do not know why the film is not here at the present time.

I do know that I -- well that's I did know where it was as of two months ago.

I viewed it subsequent to the Supreme Court of Ohio hearings and it's in the clerk's office of the Clerk of the Hamilton County, Court of Common Pleas in his possession, locked up in a file, fireproof file I might add and I don't know why it is not here.

I'm certain that it can be forwarded to this Court for examination.

Chief Justice Earl Warren: And of all that would you see that is done.

Mr. Kirschner: I will never to follow through on the Court's request.

The Court's permission as I take it basically there are two points involved in this case.

One, is the Ohio Statute on Criminal Syndicalism and two, the evidence that was presented to a judge and jury upon which a finding and verdict of guilty was returned.

Now, counsel, I believe that the Ohio Criminal Syndicalism law is constitutional.

I have cited various authorities relative to my beliefs in this matter in my brief.

I believe that the basic matter before this Court is the application of the evidence as was presented to the jury to determine whether or not there was sufficient evidence upon which a jury could return a verdict.

I believe that in this case when counsel says sending the Jews back to Israel, let's give them back to the dark garden that this might not involved violence.

I would like him perhaps in his reply to explain how the statement, “Bury the niggers” would not constitute a violent form of actions.

Now in this case, there is two basic parts of the film.

One, that was taken inside of a room in which the defendant Clarence Brandenburg was identified and I don't believe there is any question or any in the record either between the appellant and the appellee in this matter relative to his identification as he being the person saying, this is an organizer's meeting we have had quite a few members here today which are we have had hundred -- hundreds of members throughout the state and so forth.

Then there is a second portion of the film in which a group of people are walking or marching around a burning cross, hooded, armed, shouting profanities in which there is a question whether or not the defendant himself said the words as attributed to him in the transcript and on page 5.

“How far is the nigger going to -- yeah.”

“Send the Jews back to Israel” and so forth with the other profanities.

There is some evidence in the transcript itself which could indicate as a jury sitting and listening in that the defendant himself made one or more of these statements, and I apologize to the Court for not having this as part of my brief.

I notified counsel of the possibility of my bringing this matter up.

Ohio has a section in its code.

Ohio Revised Code Section 1.17 which provides, whoever aids, abets, or procures another to commit an offense may be prosecuted as if he were the principal offender.

We have a group of people marching around as an organizer's meeting toward the acts of violence and in that they had attributed and desired the suppression of the Negro.

Justice Thurgood Marshall: What was the size of this group of people?

Mr. Kirschner: With the Court's permission at the time of the marching around the cross, the size was approximately 10 to 20 as counsel for appellant has stated.

Justice Thurgood Marshall: What is --

Mr. Kirschner: Prior to that --

Justice Thurgood Marshall: Is there anything in the record that shows that more people were involved?

Mr. Kirschner: Yes, sir.

I believe that the defendants own statement.

We have had in his statement when he's inside the building.

We have had quite a few members here today which are and then he goes on to say, showing that there had been several members there.

I might further point out as one of the justices I believe it was Justice --

Justice Thurgood Marshall: Was that before or after he says, he's going to bring 400,000 people to the district?

Mr. Kirschner: I'm sorry sir?

Justice Thurgood Marshall: Was that before or after he says, he's going to bring all these thousand down to the District of --

Mr. Kirschner: That was just before that.

That is the preface to the opening of that statement.

Yes, sir.

Justice Thurgood Marshall: Anything else from the record to show that there was any possibility of -- in carrying out any of these?

Mr. Kirschner: Well, if Your Honor please.

I believe that we have to take the entire actions of the defendant himself that we cannot limit it to just what these words say.

I believe the evidence clearly show that the defendant himself contacted the television station for the purpose of having a television, cameramen, and newsmen out of that meeting to take pictures to put it out over the television station.

So, when we say there are 10 or 20 people at this meeting.

I don't think we can limit ourselves to just those 10 or 20 people.

This is a plan, a concert action on the part of this defendant to broadcast this as it appears to me and upon which a jury could determine this profanities, whatever you would want to call it across a large segment of the community in Ohio.

And subsequently, I might add to that was picked up by a network television.

I don't think we can limit ourselves to just 10 or 20 people.

Although in and of itself, I would say that the statements such as this to 10 or 20 people can cause a one heck of a lot of crime and violence to terrorism in any community.

It only takes one person to cause it but you get 10 or 20 with hoods, shotguns, rifles, and other things.

Saying, “Kill a nigger”, “Send the Jews back to Israel”, “Send the dark men back to Africa”, etcetera.

Riding in a community and I say, you can cause violence, crime and terrorism right at the start with just two men not like -- not 10 or 20 as the record indicates.

Justice Thurgood Marshall: With out country -- out in the country?

Mr. Kirschner: Well, but the broadcast was not in the country.

The broadcast was to the community, locally.

Justice Potter Stewart: Except Mr. Kirschner the theory of the indictment as I read on page 2 of appendix is that these people were charged with violating the statute by what they did at that farm on two-mile road on that evening not with anything to do with the television broadcast.

Mr. Kirschner: Well, as a part --

Justice Potter Stewart: Have you tried the indictment?

Mr. Kirschner: No.

I -- I would say that perhaps my interpretation of it is different from Your Honors.

As part of that meeting, this man had set up, right then and there a television camera.

His acts at that meeting were addressing not only the people who were standing in front of him but the vast audience of the community who would receive this broadcast by way of the television communication.

Which he himself has arranged in which the record shows that he was the one that contacted the television station to get them there in the first place.

So, I would say, yes, his acts at the scene but I don't think you can limit it to just the 10 or 20 people who were there.

Justice Potter Stewart: Part of his acts at the scene you say were saying things knowing that they would be filmed and broadcast --

Mr. Kirschner: That is correct Your Honor.

That is my opinion.

Justice John M. Harlan: What was the jury (Inaudible) --

Justice William J. Brennan: That's my next question.

Justice John M. Harlan: What were the elements to the events that is described -- that is given to the jury by the judge?

Mr. Kirschner: With the Court's permission, the elements of the events as given by the Court instruction in this matter were basically that they shall -- the reading of the indictment and the definition of the word advocacy as pronounced by the statute of Ohio.

The definition of advocacy is spelled out in the code section and I believe without giving specific verbiage it is spelled out in the appendix.

It is basically that aspect that was spelled out in this matter.

Justice John M. Harlan: I thought that was the clear and present danger?

Mr. Kirschner: With the Court's permission in this matter there were no instructions relative to clear and present danger given by the Court.

Justice John M. Harlan: Or its advocacy of action?

Mr. Kirschner: With the Court's permission in the determination as to a specific spelling out item by item of advocacy of action, no.

As to a general interpretation, I believe, yes.

I believe the Ohio code in its definition does interpret advocacy of action.

It is advocacy of action of crime, violence, terrorism not an abstract doctrine.

It is the efficacy of the action to do violence, to do terrorism and with regard to that matter with the Court's permission as I spelled out in my brief.

Ohio has a rule that an error of omission is not an error in the charge.

I want to point out further that counsel for the appellant giving him the benefit of the doubt inadvertently left out that aspect of the charge in which the Court turned to the defense counsel and specifically ask defendant's attorney, “Do you have anything to add to my charge?”

To which at that point, defense counsel says and I may be getting the not quite the exact verbiage, “No, Your Honor we are satisfied.”

Justice John M. Harlan: What page is this?

Mr. Kirschner: With the Court's permission that is not in the appendix, however, I have spelled it out in my brief itself.

Justice William J. Brennan: I think its on page 5 of your brief.

Mr. Kirschner: Page 5, if Your Honor please.

This is spelled out in the transcript on page 219 of the actual transcript.

The question, “Counsel for the state anything to add to the Court's charge?”

Mr. Nicklen (ph), who was counsel for the state, “Nothing, Your Honor.”

The Court, “Counsel for the defending anything to add to the Court's charge?”

Mr. Elkhart (ph), counsel for the defendant, “No, Your Honor.”

This is at page 219 of the transcript that is spelled out on page 5.

Justice Byron R. White: Well, may I add up Mr. Kirschner.

I gather these constitutional questions were raised on the appeal whatever that procedure is that those to in your Supreme Court, were they?

Mr. Kirschner: With the Court's permission, the constitutional issue relative to the aspect of clear and present danger was raised in the --

Justice Byron R. White: Well, may I ask this question --

Chief Justice Earl Warren: Those raise were?

Mr. Kirschner: I believe it was raised in the Supreme Court of Ohio.

I took the case on at that level.

I was not the trial counsel nor was I the appellant counsel.

Justice Byron R. White: Well, then may I ask Mr. Kirschner, I'm looking at page 85 which is the judgment of Supreme Court of Ohio.

What does this mean?

It says, the cause here on appeal as of right was heard in the manner prescribed by law and no motion to dismiss the appeal having been filed.

The Court that is the Supreme Court, sua sponte, dismisses the appeal for the reason that no substantial constitutional question exist herein.

I may -- do I read this correctly if I suppose this means, if they examine the record to see if any of the constitutional questions asserted was substantial.

Mr. Kirschner: Let me give this aspect.

I can not speak for the Supreme Court of Ohio as to their interpretation of verbiage.

I can give this Court procedure, the procedure in the matter if defense counsel files his appeal within time and as of right.

At that point, defense counsel and the state appeared in Columbus, Ohio at which time the Court through its representative heard arguments both for and against the allowing --

Justice Byron R. White: The constitutional questions?

Mr. Kirschner: -- and the constitutional questions by the Ohio Supreme Court at that point.

Subsequent to that, the Court then issued this ruling.

Justice Byron R. White: Well, doesn't this suggest that the -- whatever the constitutional questions that were raised and I gather you tell me the clear and present danger was among them, was considered and decided?

Mr. Kirschner: Yes, sir.

Justice Byron R. White: Well if that's so, what difference does it make with the no objection was taken to the charge?

If your Supreme Court reached and decided these questions then they're properly here, they overlooked that they didn't get a picture on.

Mr. Kirschner: Well, if Your Honor please.

What I am saying is this, the charge that the Court gave insofar as it went was not incorrect.

I am saying further that the absence of the verbiage clear and present danger did not make that charge void.

I am saying --

Justice Byron R. White: Suppose we disagree with that.

The problem is --

Mr. Kirschner: What's your problem?

Justice Byron R. White: -- if we disagree with that whether we can reach it and face with the fact that there was no objection.

And as I gather from this judgment with the Supreme Court of Ohio, it considered and decided the constitutional questions, I suppose in that circumstance is immaterial.

Mr. Kirschner: I would say that if you disagreed with the basic premise that is the duty of counsel to raise that objection at the time and that the law of Ohio is incorrect --

Justice Byron R. White: If we disagree with the basic premise.

It is that was not given as a reason by the Supreme Court of Ohio not to decide the merits of the constitutional same on the contrary.

The Supreme Court of Ohio apparently did consider and decide the constitutional questions, notwithstanding the failure to make objections.

And if that so, I think, isn't it so that issues then properly before us?

Mr. Kirschner: Well, if the Court's permission as I have indicated.

It is my humble belief that this is basically a state statute.

If you determine that state's statute is valid, you go to the evidence.

And I believe that this, the evidence, was there and the only way that it should be thrown out as if there was no evidence upon which a jury could have reach this finding because the Court -- Court's charge that was given was specific enough and direct enough to cover the clear and present danger to cover all of other aspects of the case.

Now, --

Justice Abe Fortas: And I take it that the state's position is that the advocacy in the form that it took demonstrated by this film constitutes a violation of the Criminal Syndicalism Act, is that right?

Mr. Kirschner: I believe that the advocacy at the scene which was to be set to the members there as well as advocacy which was planned to go out over the television network constituted a violation of the Ohio Syndicalism Laws insofar as the indictment charge, violence or unlawful methods of terrorism.

And I believe that --

Justice Abe Fortas: Well recently, if that so were the people or the network people to use that vague phrase violating your law too?

Mr. Kirschner: With due respect to the Court, in my humble opinion, I believe that that the network people in working with this advocacy, there has to be an intention, if it can be shown that they intentionally put this out over the television networks with the thought of bringing violence or terrorism that it is my humble belief that they may be indicted the same as Clarence Brandenburg was in this case in violation of the Ohio laws.

Justice Abe Fortas: Well, is there is any evidence in here rather than the film itself and the network arrangements that Mr. Brandenburg intended to bring about violence?

Mr. Kirschner: If the Court please, I believe that the Court and the jury may looked to the words itself, the surrounding aspects as Your Honor in a reference that you recently wrote on civil disobedience and civil disorder stated.

Even if what is said does not create a clear and present danger and I believe that it was a clear and present danger at the time.

A physical injury to others, the place where the speech is uttered, the size of the crowd, the circumstances may convert the lawful into the unlawful.

It is my humble belief that the circumstances, if this was on a rural farm where nobody was around, nobody would hear this except perhaps five people in a little circle.

And Clarence Brandenburg was never tried here, the defendant in this case, to the propagation of this epithets, derogatory statements or column which he made through the television networks, I say that the State of Ohio's case would be substantially weakened.

But in this case, it is not someone else contacting the television networks.

It is Clarence Brandenburg himself who contacts the television newsman himself, requesting that they have a man there to take his picture, making certain statements and to take his group of which he is the leader and organizer of in propagating these statements to the general public of Cincinnati --

Justice Abe Fortas: Well, as your -- well, I suppose that can be said that there is no question that he intended to advocate, whatever he advocated here.

But the next question is, do you have to have some additional proof to the effect that he also intended that steps be taken to carry out this program with respect to the Negroes and the Jews and so on that he described?

Mr. Kirschner: With the Court's permission, it is my humble belief that you do not have to have anything further.

If I were to go and I use this as an extreme statement but if I were to run down Harlem shall we say and say, “Bury the Negro”, “Send them back to the black Africa.”

Justice Thurgood Marshall: He wouldn't last that long?

Mr. Kirschner: Probably so, Your Honor.

And if I were to go to Israel and say the same thing about sending the Jews to the Arab countries or something or to any other, I don't say derogatory but I say that because these are the two groups that the defendant has picked up on in his derogatory statements.

I say the very words themselves indicate --

Justice Abe Fortas: So, those words would carry on the network, why wasn't that a violation of your law?

That's that the question that started over.

Mr. Kirschner: As I indicated with the Court's permission it is my humble belief that in the addition there must be an intention to cause the violence, the --

Justice Abe Fortas: That's right.

Mr. Kirschner: -- the terrorism.

Justice Abe Fortas: And I ask you again whether there is any proof of that other than the utterance of words and the arrangements for the network --

Mr. Kirschner: Other than the defendant's action which I believe indicate his intention, there is no other proof.

Justice Potter Stewart: Mr. Kirschner, this was in June of 1964?

Mr. Kirschner: Yes, Your Honor.

Justice Potter Stewart: June 28, 1964.

Mr. Kirschner: Yes, sir.

Justice Potter Stewart: What was the contemporary context in the Cincinnati community?

Those riots in Avondale came in the spring of 1966, didn't they?

Mr. Kirschner: Six -- I believe it was 1966 and -- 1967 if I'm not mistaken and 1968, however --

Justice Potter Stewart: But many at time --

Mr. Kirschner: -- however, there was at the time unrest.

There were marches at that time, I believe in the south.

There were the propositions specifically, I believe the Birmingham situation was at or around that particular time and there was civil unrest and dispute going out through the entire country and I don't think it just be limited to the south as such.

It was played up by the press and the news media.

Justice Potter Stewart: But there was no particular local situation in Hamilton County at that time, was it?

Mr. Kirschner: Yes.

To riots?

No.

Justice Potter Stewart: That kind of unrest, racial unrest took --

Mr. Kirschner: I believe that there was --

Justice Potter Stewart: In any dramatic form at that time?

Mr. Kirschner: There were civil -- there were protest march within the concepts of legal protest, demonstrations, picketing of that nature at that time in Cincinnati but in nature of riots of that nature?

No, Your Honor.

Justice Potter Stewart: And this was not part and parcel or response to anything specifically that was going on, on that community at that time.

Mr. Kirschner: No, sir.

No, sir.

It was basically a feeling I believe throughout the entire United States, however, limited as such to the community.

Thank you.

Justice Byron R. White: Mr. Brown, I don't suppose that whatever is you and Mr. Kirschner have submitted to Supreme Court of Ohio was in the record before us yet, is it?

Rebuttal of Allen Brown

Mr. Brown: In view of the fact Your Honor of the amazing circumstance in my opinion that I did not get allowance into the Supreme Court of Ohio.

I in ordering my certification of record to this Court asked specifically that the briefs submitted to the Supreme Court of Ohio.

Justice Byron R. White: So they're probably here?

Mr. Brown: So, they are within the possession of the clerk here.

Justice Byron R. White: Have you any recollection whether the state raised the question of failure to object to the instructions as one reason that the issue should not be --

Mr. Brown: The state has, not until we appeared here, I think if I'm correct, never raise the question of failing to object.

Justice Byron R. White: Now, how do you interpret that judgment of the Supreme Court of Ohio?

Mr. Brown: May it please the Court.

If the Court were -- is aware of the procedures and the entries of the Supreme Court of Ohio.

The Supreme Court of Ohio if it is ruling that a constitutional question has not been raised will deny the motion to dismiss the appeal as of right with the following language.

A constitutional question having not been timely raised the same as dismissed.

If the constitutional question has been properly raised, he will use the language in the entry before you.

Justice Byron R. White: I see.

Mr. Brown: The --

Justice Byron R. White: So, that that's to say then in your view that judgment should be --

Mr. Brown: Considered to (Voice Overlap).

Justice Byron R. White: -- read as a determination on the merits of the constitutional questions.

Mr. Brown: Now --

Justice Potter Stewart: Its just boilerplate in the Supreme Court of Ohio, isn't it?

That -- this form on page 85 of the appendix.

Mr. Brown: That's boilerplate form when you're just turning it away on the merits of the substantive constitutional question.

Justice Potter Stewart: You mentioned in your brief I think Mr. Brown that the reason there was no opinion in the Court of Appeals of Ohio was that the judge assigned to write the opinion died.

Mr. Brown: Judge Holman and you know him.

Justice Potter Stewart: Yes.

Does that appear -- does that fact appear anywhere else here?

Mr. Brown: No.

That was told to me by Judge Holman.

Justice Potter Stewart: I see.

Mr. Brown: Either it would not appear in official record in it.

Justice Potter Stewart: Was this a Kassay case back in 1932 the one that Judge Florence Allen wrote quite a eloquent dissenting, do you happen to remember?

Mr. Brown: I don't -- I don't remember a dissent at all.

I don't remember said.

I know it was a five-two vote with two dissenters but I don't remember any written dissent --

Justice Potter Stewart: I don't -- perhaps, I'm thinking about different case.

Justice William O. Douglas: In Ohio, does everybody know who's been assigned to the opinion to write?

Mr. Brown: No.

We've only in this instance, Your Honor that there had been in fact similarly a year's delay after the submission to the appellate court.

We then approach the appellate court asking why and at that time, the judge informally indicated that the man who had been assigned to the opinion have recently, unfortunately died and that's how that came to light.

Justice Byron R. White: What was the sentence in this case?

Mr. Brown: The sentence was 1 to 10 years --

Justice Byron R. White: On each count?

Mr. Brown: On each count for $1,000.00 fine.

Justice Byron R. White: And concurrent?

Mr. Brown: Concurrent, yes.

Justice William J. Brennan: So that the --

Mr. Brown: So, this man could potentially for this act of stupidity served under the laws of Ohio up to 20 -- oh, no 10 years maximum.

Justice Abe Fortas: Well, on your case you don't have to demonstrate that it says stupidity, do you?

Mr. Brown: No.

To win my case, Justice Fortas, may I submit that the State of Ohio as just as this moment indicated the massive invasion into the First Amendment that we have here into when Mr. Kirschner suggested that I could run down through Harlem saying, “Kill the Negroes” and Justice Marshall responded, “You wouldn't last very long.”

That Justice Marshall who is safe for the moment because the venue is in Washington D.C. but in Ohio could be indicted for suggesting a violent reaction by the Negro community.

This is the state of invasion under this statute into the First Amendment rights because under the proposition that Mr. Kirschner outlined here legally that is precisely the effect of Justice Marshall's remark.

I suggest further that we have this unusual situation.

We have such a deep-seated invasion the First Amendment rights that we get in meshed in difficulties of Mr. Kirschner outlines when he says there was no objection.

Incidentally, I was not counsel of record and I have never at this point because I feel certain professional loyalties raised the question of competency of counsel in the original trial.

But assuming Mr. Kirschner's reasoning what he has stated here is that the Supreme Court would have stated the record before it, was saying in effect that a constitutional issue is a mere error of omission and it is further saying that the instructions that you have before you to read are the dimensions that Ohio sets upon this statutes invasion of the First Amendment.

And I suggest that if that is the state of the record, that perhaps my earlier response to you Justice Brennan is not correct and perhaps, we must then reach the statute and declare it unconstitutional.

Chief Justice Earl Warren: Mr. Brown, before we conclude I just like to say to you that the Court appreciates your acceptance of our assignment to represent this indigent defendant.

We consider that a real public service and I'm grateful to for your efforts.

Mr. Brown: I should perhaps state for sake of the record that counsel for the appellant in no way agrees with any of the appellant's positions.

I will however take the voluntarian position in relation to the appellant.

Chief Justice Earl Warren: Thank you.

Mr. Kirschner, we've of course appreciate your fair and diligent representation of the People of Ohio.

Rebuttal of Leonard Kirschner

Mr. Kirschner: Thank you, sir.

Chief Justice Earl Warren: We'll adjourn.