All law students taking a First Amendment course, or even a constitutional law survey course, learn the rule of Brandenburg v. Ohio, a case that grew out of a 1964 KKK rally near Cincinnati.
Brandenburg provides “that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of using force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”
I celebrate Brandenburg when I teach it each year. The speech at the core of that case was every bit as odious as that used by the bigots in Charlottesville this weekend. But those bigots in 1964 lacked the present ability to incite violence. Those in Charlottesville had that ability to incite violence, and they used it.
Now three are dead, including two state troopers. Others are severely injured. The investigation should be careful and professional but also resolute. Lots of people should be charged if they contributed to the mayhem that led to these deaths.[soundcloud url=”https://api.soundcloud.com/tracks/338447805″ params=”color=ff5500&auto_play=false&hide_related=false&show_comments=true&show_user=true&show_reposts=false” width=”100%” height=”166″ iframe=”true” /]