Earl Warren: Number 492, Clarence Brandenburg, appellate versus Ohio. Mr. Brown.
Allen 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 --
Potter Stewart: There were guns? There were guns in this first --
Allen Brown: There were guns in both films.
Potter Stewart: -- in both of them, wasn't it?
Allen 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.
Speaker: How large was this meeting?
Allen Brown: The pictures, the testimony and the pictures indicate that perhaps 20 persons were involved.
Speaker: Any spectators --
Allen 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.
Speaker: The film is recorded?
Allen Brown: Pardon, Your Honor?
Speaker: The film under exhibit?
Allen Brown: The film is an exhibit.
Speaker: It's here in the Court?
Allen 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 --
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?
Allen Brown: Yes.
Hugo L. Black: There is a dispute --
Allen 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 --
Hugo L. Black: And -- and your adversary disputes that?
Allen Brown: I assume my adversary disputes that.
Potter Stewart: The State's whole case was the film plus the identification of the defendant as the person shown --
Allen Brown: That's correct.
Potter Stewart: -- in the film, is that right?
Allen 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.
Potter Stewart: This film was shown over a local television station and in a network, wouldn't it?
Allen Brown: This film was shown over a local television station and a network.
Potter Stewart: In a network?
Allen Brown: That's correct.
Potter Stewart: Who is the trial judge?
Allen Brown: Judge Simon Leis. Does it ring any bells, judge?
Potter Stewart: Yes, it does.
Allen Brown: Okay.
William J. Brennan, Jr.: 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?
Allen Brown: That is correct.
William J. Brennan, Jr.: In other words, all the film was in evidence was depicting what happened on a certain day.
Allen Brown: That is correct.
William J. Brennan, Jr.: And that's because of what happened, it was alleged that there been a violation of statutes.
Allen 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 --
William J. Brennan, Jr.: That's was, yes.
Allen Brown: -- and the charge.
William J. Brennan, Jr.: 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 --
Allen 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.
William J. Brennan, Jr.: Oh, that doesn't help you?
Allen 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.
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.
Allen 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 --
William J. Brennan, Jr.: Now, that's why I asked you earlier, the indictment was for the events depicted.
Allen Brown: That is correct.
William J. Brennan, Jr.: Not for the showing and the motion that your --
Allen Brown: That is correct.
William J. Brennan, Jr.: -- the context of conspiracy or anything else.
Allen Brown: That's correct.
William J. Brennan, Jr.: It's just what happened in that --
Allen Brown: What happened on that farm on that day and that is the important distinction to be made.
Abe Fortas: Did this appellant have anything to do with arranging for the events to be televised?
Allen Brown: There is evidence in the record that indicate that his was the voice that called the radio, TV announcement.
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.
Allen Brown: That maybe the case Judge -- Justice Fortas.
Abe Fortas: (Voice Overlap) Yes, if he had arranged the Court --
Allen Brown: I think that however the State of Ohio chose not to charge him for that.
Abe Fortas: But they have arranged before it to be televised presumably he intended that his remarks reached a larger audience.
Allen Brown: It's quite potentially possible. This is however not what the state chose to charge him on, read the indictment and --
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?
Allen 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.
William O. Douglas: I think this may be taken some liberties help through the record of the Dennis case --
Allen Brown: But in any event --
William O. Douglas: -- it has to know.
Allen 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.
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 --
Allen 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.
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.
Allen Brown: That's correct.
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 --
Allen Brown: I certainly would prefer that you did, however --
Byron R. White: But we don't have to if we strike it down and it (Inaudible).
Allen 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.
Byron R. White: You mean on the evidence.
Allen Brown: On the evidence. This Court has those alternatives, I cannot escape.
William O. Douglas: What do you say to the --
Allen 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.
Byron R. White: I know what's before us is a conviction in this case.
Allen Brown: What's before you in the entire --
Byron R. White: And if we agree reverse the conviction, I take that is much as you're entitled to it.
Allen Brown: I don't from work --
Byron R. White: I know.
Allen Brown: -- the intake.
William O. Douglas: I wonder what you say to this statement on page 6 of your brief.
Allen Brown: This is our brief Your Honor.
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.
Allen Brown: May it please the Court. Let me several things concerning --
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.
Allen Brown: How do we know this is a program? How do we know --
William O. Douglas: I mean just saying from -- if you believe what they say what the speaker says.
Allen 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 --
Thurgood Marshall: Oh, how else -- how else is he going to persuade some people to go back there without a violence?
Allen 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 --
Thurgood Marshall: Not against something that will go back that then you can believe more that change the law.
Allen 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.
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.
Allen Brown: I know --
Earl Warren: Would you just tell us what efforts you made to get it here?
Allen 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.
Earl Warren: Well, maybe counsel could answer it better than you could --
Abe Fortas: Mr. Brown, we don't have anywhere a complete transcript of what was said in the film either, do we?
Allen Brown: Yes, you do.
Abe Fortas: Where is that?
Allen Brown: In the appendix on pages --
Potter Stewart: 24, 25?
Allen Brown: -- 24 and 25.
Abe Fortas: Is that all? That's not all that we assume because --
Allen Brown: And there is a second portion on the second --
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.
Allen Brown: In the --
Abe Fortas: Does that appear anywhere?
Allen Brown: Yes, in the appellant's brief.
Abe Fortas: Where?
Allen Brown: On pages 5 and 6.
Abe Fortas: Now -- now, is that --
Allen 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.
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.
Allen Brown: Of one interpret of it --
Abe Fortas: Now, what about -- now --
Allen Brown: There are two films --
Abe Fortas: Alright now, how about the second?
Allen 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.
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.
Leonard 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.
Earl Warren: And of all that would you see that is done.
Leonard 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.
Thurgood Marshall: What was the size of this group of people?
Leonard 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.
Thurgood Marshall: What is --
Leonard Kirschner: Prior to that --
Thurgood Marshall: Is there anything in the record that shows that more people were involved?
Leonard 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 --
Thurgood Marshall: Was that before or after he says, he's going to bring 400,000 people to the district?
Leonard Kirschner: I'm sorry sir?
Thurgood Marshall: Was that before or after he says, he's going to bring all these thousand down to the District of --
Leonard Kirschner: That was just before that. That is the preface to the opening of that statement. Yes, sir.
Thurgood Marshall: Anything else from the record to show that there was any possibility of -- in carrying out any of these?
Leonard 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.
Thurgood Marshall: With out country -- out in the country?
Leonard Kirschner: Well, but the broadcast was not in the country. The broadcast was to the community, locally.
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.
Leonard Kirschner: Well, as a part --
Potter Stewart: Have you tried the indictment?
Leonard 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.
Potter Stewart: Part of his acts at the scene you say were saying things knowing that they would be filmed and broadcast --
Leonard Kirschner: That is correct Your Honor. That is my opinion.
Speaker: What was the jury (Inaudible) --
William J. Brennan, Jr.: That's my next question.
Speaker: What were the elements to the events that is described -- that is given to the jury by the judge?
Leonard 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.
Speaker: I thought that was the clear and present danger?
Leonard Kirschner: With the Court's permission in this matter there were no instructions relative to clear and present danger given by the Court.
Speaker: Or its advocacy of action?
Leonard 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.”
Speaker: What page is this?
Leonard Kirschner: With the Court's permission that is not in the appendix, however, I have spelled it out in my brief itself.
William J. Brennan, Jr.: I think its on page 5 of your brief.
Leonard 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.
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?
Leonard Kirschner: With the Court's permission, the constitutional issue relative to the aspect of clear and present danger was raised in the --
Byron R. White: Well, may I ask this question --
Earl Warren: Those raise were?
Leonard 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.
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.
Leonard 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 --
Byron R. White: The constitutional questions?
Leonard Kirschner: -- and the constitutional questions by the Ohio Supreme Court at that point. Subsequent to that, the Court then issued this ruling.
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?
Leonard Kirschner: Yes, sir.
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.
Leonard 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 --
Byron R. White: Suppose we disagree with that. The problem is --
Leonard Kirschner: What's your problem?
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.
Leonard 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 --
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?
Leonard 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, --
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?
Leonard 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 --
Abe Fortas: Well recently, if that so were the people or the network people to use that vague phrase violating your law too?
Leonard 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.
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?
Leonard 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 --
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?
Leonard 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.”
Thurgood Marshall: He wouldn't last that long?
Leonard 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 --
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.
Leonard 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 --
Abe Fortas: That's right.
Leonard Kirschner: -- the terrorism.
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 --
Leonard Kirschner: Other than the defendant's action which I believe indicate his intention, there is no other proof.
Potter Stewart: Mr. Kirschner, this was in June of 1964?
Leonard Kirschner: Yes, Your Honor.
Potter Stewart: June 28, 1964.
Leonard Kirschner: Yes, sir.
Potter Stewart: What was the contemporary context in the Cincinnati community? Those riots in Avondale came in the spring of 1966, didn't they?
Leonard Kirschner: Six -- I believe it was 1966 and -- 1967 if I'm not mistaken and 1968, however --
Potter Stewart: But many at time --
Leonard 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.
Potter Stewart: But there was no particular local situation in Hamilton County at that time, was it?
Leonard Kirschner: Yes. To riots? No.
Potter Stewart: That kind of unrest, racial unrest took --
Leonard Kirschner: I believe that there was --
Potter Stewart: In any dramatic form at that time?
Leonard 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.
Potter Stewart: And this was not part and parcel or response to anything specifically that was going on, on that community at that time.
Leonard Kirschner: No, sir. It was basically a feeling I believe throughout the entire United States, however, limited as such to the community. Thank you.
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?
Allen 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.
Byron R. White: So they're probably here?
Allen Brown: So, they are within the possession of the clerk here.
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 --
Allen Brown: The state has, not until we appeared here, I think if I'm correct, never raise the question of failing to object.
Byron R. White: Now, how do you interpret that judgment of the Supreme Court of Ohio?
Allen 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.
Byron R. White: I see.
Allen Brown: The --
Byron R. White: So, that that's to say then in your view that judgment should be --
Allen Brown: Considered to (Voice Overlap).
Byron R. White: -- read as a determination on the merits of the constitutional questions.
Allen Brown: Now --
Potter Stewart: Its just boilerplate in the Supreme Court of Ohio, isn't it? That -- this form on page 85 of the appendix.
Allen Brown: That's boilerplate form when you're just turning it away on the merits of the substantive constitutional question.
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.
Allen Brown: Judge Holman and you know him.
Potter Stewart: Yes. Does that appear -- does that fact appear anywhere else here?
Allen Brown: No. That was told to me by Judge Holman.
Potter Stewart: I see.
Allen Brown: Either it would not appear in official record in it.
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?
Allen 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 --
Potter Stewart: I don't -- perhaps, I'm thinking about different case.
William O. Douglas: In Ohio, does everybody know who's been assigned to the opinion to write?
Allen 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.
Byron R. White: What was the sentence in this case?
Allen Brown: The sentence was 1 to 10 years --
Byron R. White: On each count?
Allen Brown: On each count for $1,000.00 fine.
Byron R. White: And concurrent?
Allen Brown: Concurrent, yes.
William J. Brennan, Jr.: So that the --
Allen 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.
Abe Fortas: Well, on your case you don't have to demonstrate that it says stupidity, do you?
Allen 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.
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.
Allen 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.
Earl Warren: Thank you. Mr. Kirschner, we've of course appreciate your fair and diligent representation of the People of Ohio.
Leonard Kirschner: Thank you, sir.
Earl Warren: We'll adjourn.