We covered Brandenburg in class today:
- Click here for the article.
Any potential criminal charges against President Donald Trump in the U.S. Capitol riot would hinge on a 1969 U.S. Supreme Court decision surrounding a Cincinnati Ku Klux Klan rally, experts say.
In its decision, the Supreme Court said speech that advocates for illegal activity is protected, unless it “is directed to inciting or producing imminent lawless action and is likely to produce such action.”
A reporter and cameraman filmed the event, which was later broadcast nationally.
The film showed 12 hooded people, some carrying firearms, gathered around a large wooden cross, which they set on fire.
In another scene, a hooded person later identified as Brandenburg, said, in part: “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 revengeance (sic) taken.”
. . . Any criminal charges against Trump would have “to overcome the Brandenburg hurdle,” said Michael Mannheimer, a professor at Northern Kentucky University’s Chase College of Law.
Mannheimer said the Supreme Court’s decision recognized that inflammatory political speech sometimes advocates breaking the law.
“Even if it advocates breaking the law, it can’t be criminalized unless it meets certain criteria under the First Amendment,” he said.
Kevin Francis O’Neill, a professor at Cleveland-Marshall College of Law who has studied the First Amendment for decades, said the decision lays out three elements a prosecutor must show:The speaker directly advocated for lawless action
The advocacy must call for immediate lawless action
The action must be likely to occur
O’Neill said he believes potential charges would hinge on whether Trump is seen to have directed the crowd to engage in lawless action.
“Did he expressly advocate violation of the law – that’s going to be the hard part,” he said.
