The Right to Advocate Regardless of Belief

As an American, some of the most important rights we share are enshrined in the First Amendment. This right is granted to all American citizens regardless of birth-right or naturalized citizenship. No matter your political party or position, this right must be protected for the benefit of all Americans.

This is extremely important because, the court has learned through time that “people are easily deterred from exercising their freedom of speech…If they [the public] know they might go to jail for speaking, they will often forego their right to speak.”¹ The government does not have the right to silence us simply because of our beliefs or our allegiance to one political party or another. Consider the following cases with me:

Brandenburg v. Ohio

In 1969, The Supreme Court of the United States (SCOTUS) ruled that the freedom of speech extends to “advocacy of the use of force or of law violation.”¹ There was only one exception, with a two part test that restricts free speech if “such advocacy is directed to inciting or producing imminent lawless action and is likely to produce such action.”³ The court further reasoned that “a statute which fails to draw this distinction impermissibly intrudes upon the freedoms guaranteed by the First and Fourteenth Amendments.”⁴

The case arose from a speech made by a local leader of the Ku Klux Klan located in the state of Ohio. His speech gathered attention for the following statements: “We [are] not a revengent organization, but 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 revengence taken. We are marching on Congress July the Fourth, four hundred thousand strong.”⁵ (emphasis added) The court reasoned that this speech is protected because the language did not advocate for immediate illegal action and was not likely to result in any immediate illegal act.⁶ 

NAACP v. Claiborne Hardware Co.

In 1982, a similar case was brought against the NAACP for statements made during a public speech advocating a boycott of racially discriminatory stores in Claiborne County, Mississippi.⁷ Charles Evers, spoke to a group of several hundred people, where he stated “that boycott violators would be ‘disciplined’ by their own people and warned that the Sheriff could not sleep with boycott violators at night.”⁸ In another speech, two days later, Charles Evers stated “If we catch any of you going in any of them racist stores, we`re gonna break your damn neck.”⁹ Similar to Brandenburg, these statements did not result in any significant acts of violence.¹⁰ 

The boycott of these stores was a combination of peaceful picketing and speeches from several speakers, including Charles Evers, above.¹¹ The court found that the right to assemble has protection, even if members “may have participated in conduct or advocated doctrine that itself is not protected.”¹² Chief Justice Hughes, citing another case, stated:

It follows from these considerations that, consistently with the Federal Constitution, peaceable assembly for lawful discussion cannot be made a crime. The holding of meetings for peaceable political action cannot be proscribed. Those who assist in the conduct of such meetings cannot be branded as criminals on that score…But it is a different matter when the State, instead of prosecuting them for such offenses, seizes upon mere participation in a peaceable assembly and a lawful public discussion as the basis for a criminal charge.¹³ 

The court here found that the NAACP was liable for other types of economic damages, and that imposing liability for damages, did not constitute a violation of the First Amendment. They were held liable for damages resulting from the loss of additional customers to the stores they boycotted, but not because of any contents of the speeches analyzed in this article.

Why do these cases matter?

These cases matter because the court has recognized that “‘offensive’ and ‘coercive’ speech was nevertheless protected by the First Amendment.”¹⁴ No matter who we may disagree with, on the basis of their opinions or beliefs, it does not give any of us the ability to restrict the free speech and assembly of others. Whether you find the actions of far-left or far-right groups to be hateful or “un-American,” we must all allow others to speak. Not because we agree with the ‘other side,’ but because we are all Americans together.

To forget the rights that have been fought for throughout our history and protected by the Supreme Court, is to allow those same rights to be taken by those who do not want criticism at all. Our rights do not have a political party. They are maintained by the continuous fight of regular Americans to protect ourselves from those who wish to silence us.

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Footnotes:

1. Geoffrey R. Stone et al., Aspen Casebook Series, The First Amendment 46 (7^th ed. 2024) (citing Stone, Free Speech in the Twenty-First Century: Ten Lessons from the Twentieth Century, 36 Pepp. L. Rev. 273 (2008))

2. Brandenburg v. Ohio, 395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969)

3. Id.

4. Brandenburg, 23 L.Ed.2d at 448

5. Brandenburg, 23 L.Ed.2d at 446

6. Brandenburg, 23 L.Ed.2d at 448-449

7. National Association For Advancement of Colored People v. Claiborne Hardware Company, 458 U.S. 886, 102 S.Ct. 3409, 73 L.Ed.2d 1215 (1982)

8. NAACP v. Claiborne Hardware Co., 458 U.S. 886 at 902

9. Id.

10. Id.

11. NAACP v. Claiborne Hardware Co., 458 U.S. 886 at 907

12. NAACP v. Claiborne Hardware Co., 458 U.S. 886 at 908

13. National Association For Advancement of Colored People v. Claiborne Hardware Company, 458 U.S. 886, 102 S.Ct. 3409, 73 L.Ed.2d 1215 (1982) (citing De Jonge v. Oregon, 299 U.S. 353, 57 S.Ct. 255, 81 L.Ed. 278 (1937))

14. NAACP v. Claiborne Hardware Co., 458 U.S. 886 at 911