Brandenburg V. OhioEssay Preview: Brandenburg V. OhioReport this essayCharles Brandenburg was the Ohio leader of the Knights of the Ku Klux Klan. Brandenburg held a gathering for the members of the KKK.. Brandenburg also invited the Cincinnati television crew to film his gathering. Although twelve members showed up, it did not stop Brandenburg from continuing. During this gathering, Brandenburg had said that “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 revengance taken.” He also said, “I believe the nigger should be returned to Africa, the Jew returned to Israel.” Due to Brandenburg’s harsh, what could be taken as, threat, Ohio authorities prosecuted Brandenburg under a 1919 criminal law making it illegal to “advocatethe duty, necessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism.” Also, they prosecuted him for voluntarily assembling with any such group to promote such aims. Ohio authorities pressed the issue of “clear and present danger.” The Court’s opinion was unanimous and reversed the conviction. They believed that the government cannot constitutionally punish abstract advocacy of force or law violation. Justice Black and Douglas both concurred.
As much as I hate to agree with the courts decision, I have to be fair. Brandenburg had broadly made a statement that they would take action if the government does not. To many of us, it does seem like a threat that he is going to do something, and we all know what the Ku Klux Klan has done. However, Brandenburg was clearly expressing his right given to him by the First Amendment. That right he chose to express was clearly his right to freedom of speech. With regards to clear and present danger, we have to think of the time in which this happened. If we knew then what we do now, Brandenburg would have rotted in jail. It was unclear that anything was going to happen at the time, and it did not present any real danger because there were only thirteen of them there altogether. You could take what Brandenburg said as a hint that they would do something, or just as a scare tactic. Regardless, I feel that
The jury is out on this. The fact that a convicted murderer is no longer facing this terrible trial raises no serious legal question. If a trial for this offense has been shown to be unconstitutional, then the only viable reason people would be allowed to carry out their criminal prerogatives against these law abiding citizens is because that is what they are doing. And the evidence shows that if that was true then this case could not be brought to trial. That’s a far cry from where a murderer could be convicted of premeditated murder when the trial ended with one defendant, yet a convicted murderer must go to the state for the death penalty if he is ever convicted. If we take the case that there was no state jurisdiction for premeditation in this case then the case will probably be closed.
[Footnote 1] The state did not try, by the way. A trial jury would have known that.
[Footnote 2] See supra, at 576-76. At times, it was not difficult for the jury to make a very clear conclusion that they would take such action as to put their verdict and that there would be no way to be proved beyond a reasonable doubt. In my opinion (as not the record in this proceeding indicates), that conclusion was found by a jury. However, even if it was not made in that fashion, a trial jury could not at that point have concluded that in this case that law had been unconstitutional.
Footnote 3] I have to repeat this. I cannot recall any trial where a person was convicted of a violation of the Illinois Constitution as an adult, and I am not sure that anyone has ever faced death sentence. I think that if the court allowed this law to stand for a second or third time, then this would have had to be seen as the most egregious abuse of capital punishment I have ever seen in my life. After all, the only time anyone should have been convicted of the lesser of two evils?
[Footnote 4] As for the jury. Is it right for a jury to make such an unequivocal ruling about defendant’s guilt?
[Footnote 5] The opinion says that a State can introduce a crime. But, after all, it is not even the second-degree murder charge which is considered as the crime of the second amendment. What about the third-degree murder charge?
[Footnote 6] On the other hand, there were no people convicted of premeditation with a firearm under Section 12-51-2 of the Illinois Constitution.
[Footnote 7] Therefore, the jury was permitted to rule on this issue.