This article is written by Harman Juneja, from Dr. B.R. Ambedkar National Law University, Rai, Sonepat. The article talks about the Brandenburg test and its application in the United States and India.

Introduction

The Brandenburg test has been used by courts all around the world, including India’s Supreme Court, to make judgements about free speech and “protected speech.” The renowned “Brandenburg Test” on the rights provided by the First Amendment and the 14th Amendment to the American Constitution was established by the US Supreme Court’s decision in Brandenburg vs Ohio (1969).

Freedom of speech applies to ideas of every kind; even extremely offensive beliefs. It has obligations, though, and can be restricted legally. Governments have a duty to ban speech and incitement by hatred. Also, limits may be justifiable if they safeguard specific public interests or other rights and reputations. Article 19(1)(a) and Article 21 of the Indian Constitution provide freedom of speech and individual liberty.

The Brandenburg test

In Brandenburg v. Ohio, the Supreme Court established the Brandenburg standard to decide when provocative speech intended to incite illegal action might be prohibited. In that case, a Ku Klux Klan leader gave a speech to his fellow Klansmen at a rally, and after using several derogatory racial slurs, he said, “it’s possible that there might have to be some revenge taken.” The test determined that the government may prohibit speech advocating the use of force or crime if the speech meets both elements of the two-part test:

• The speech is aimed at inciting or creating impending lawless action.
• The speech is likely to encourage or produce such action.

Using this test, the Court invalidated Ohio’s Criminal Syndicalism Act (1919), which, in the Court’s opinion, only punished people who “advocate or teach the duty, necessity, or propriety” of violence “as a means of achieving industrial or political reform” or who “justify” the commission of violent acts.

Brandenburg v. Ohio (1969)

Brandenburg v. Ohio was a major Supreme Court decision interpreting the First Amendment of the United States Constitution.

Facts of the case

• In the summer of 1964, Clarence Brandenburg, a Ku Klux Klan (KKK) leader in rural Ohio, approached a reporter at a Cincinnati television station and requested him to cover a KKK event in Hamilton County. The demonstration was filmed in parts, with numerous men dressed in robes and hoods, some holding firearms, first burning a cross and then making statements. 
• One of the lectures mentioned the potential of “revenge” against “Niggers,” “Jews,” and those who support them, as well as the mention of the President, or the  Congress’ continued repression of the white or the Caucasian race and announced preparations for a “Fourth of July” march on Congress.
• For his involvement in the event and the speech he gave, Brandenburg was charged with encouraging violence under Ohio’s criminal syndicalism legislation. Brandenburg was fined $1,000 and sentenced to one to 10 years in jail after being found guilty in the Court of Common Pleas of Hamilton County. The Ohio First District Court of Appeal upheld Brandenburg’s conviction, dismissing his contention that the statute infringed on his First Amendment and Fourteenth Amendment rights to free speech. His appeal was dismissed by the Ohio Supreme Court without a decision. The matter thus went to the supreme court.

Judgement of the Supreme Court

• The United States Supreme Court overturned Brandenburg’s conviction, ruling that the government cannot penalise abstract advocacy of force or law violations under the Constitution. The majority opinion was per curiam, which means it was issued by the Court as a whole rather than by a single justice. 
• The majority ruling overturned the Ohio Criminal Syndicalism Act (1919) and set a new criteria – the “imminent lawless action” test – for determining what was known as “seditious speech” according to the First Amendment.
• In doing so, the Court specifically overruled Whitney vs. California (1927), a case wherein Charlotte Anita Whitney, a member of a prominent California family, was found guilty under the 1919 California Criminal Syndicalism Act for allegedly assisting in the formation of the Communist Labor Party of America, a group charged by the state with teaching violent overthrow of the government.
• The Supreme Court ruled that a state may not prohibit advocacy of the use of force or law violations unless such advocacy is geared at inciting or creating imminent illegal activity and is likely to incite or create such action. The government’s restriction of Brandenburg’s speech was illegal since the rally was not meant to encourage specific acts of violence, and it was unlikely to do so.
• The Court did not, however, expressly overturn Dennis v. the United States (1951), which affirmed the convictions of Communist Party officials even though the danger posed by their speech was not imminent. The correct interpretation of the clear and present danger doctrine, according to the Court in Dennis, allowed legislatures to decide what was dangerous; the Courts’ task in applying the clear and present danger test was simply to determine whether the “gravity of the ‘evil,’ discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger.” In fact, the Court in Brandenburg acknowledged Dennis as precedent.
• Given the level of First Amendment law in the pre-Brandenburg era, the Ohio courts’ dismissive attitude toward Brandenburg’s constitutional concerns was expected. The Supreme Court of the United States held in Yates v. United States(1957), that the First Amendment protected radical and reactionary expression unless it created a “clear and present danger.”

The First Amendment of the US Constitution

The United States Constitution’s First Amendment preserves the right to freedom of religion and expression against government intrusion. It bans any legislation that establishes a national religion, obstructs the free exercise of religion, limits freedom of speech, restricts freedom of the press, limits the right to peaceful assembly, or prevents citizens from petitioning the government for a redress of grievances. In 1791, it was incorporated into the Bill of Rights. The Supreme Court determines the extent to which these rights are protected.

The Supreme Court has construed the First Amendment to apply to the entire federal government, even though it is only specifically relevant to Congress. Furthermore, the Court has construed the Fourteenth Amendment’s Due Process Clause as preserving First Amendment rights from state government intrusion.

Application of the case in the US

Hess v. Indiana (1973)

In Hess v. Indiana (1973), the Supreme Court applied the Brandenburg test to a case in which Hess, an Indiana University demonstrator, remarked, “We’ll take the fu*king street again“. The Supreme Court concluded that Hess’ profanity was protected by the Brandenburg test because it amounted to little more than an endorsement of illegal behaviour at some undefined future time. As there was no proof or reasonable inference from the meaning of the language, that his remarks were intended to provoke, and tend to cause imminent disorder, the Court found that these remarks could not be penalised by the State based on a tendency to result in violence.

NAACP v. Claiborne Hardware Co. (1982)

Charles Evers threatened violence against those who refused to boycott white businesses in NAACP v. Claiborne Hardware Co. (1982). The Supreme Court cited Brandenburg and determined that his speech was protected. The Court held that strong and forceful extempore eloquence cannot be properly channelled in just melodious terms. Also, an advocate must be free to elicit spontaneous and emotive calls for unity and action in a common cause from his audience. When such appeals do not promote illegal behaviour, they must be considered protected speech.

Application of the test in India

The “Brandenburg Test” idea has stood the test of time in American judicial history, and it continues to be the litmus test in all criminal prosecutions involving free speech. It’s encouraging to see the Supreme Court of India citing and relying on the “Brandenburg Test” principle in some of its judgements. Our Supreme Court has profitably quoted from the judgement of Brandenburg vs. Ohio in the cases of Arup Bhuyan vs State of Assam (2011) and Indra Das vs State of Assam (2011), even going so far as to say that they are of the opinion that the judgement in Brandenburg test applies to India as well, and the fundamental rights are similar to the Bill of Rights of US.

• The notion of “guilty by association” was recently rejected by the Supreme Court in the case of Arup Bhuyan vs. the State of Assam (2011). It contends that members of a banned organisation are not criminals until they use violence, inspire others to use violence, or use violence to cause public disorder or disturb the peace. 
• Arup Bhuyan relies on the decision taken in Brandenburg vs Ohio by the U.S. Supreme Court that she merely advocates or teaches violent obligations, necessities and property to implement or publish, disseminate or distribute books or papers which include such advocacy or justify the commission of violence, either as a means of carrying out political or industrial reforms. Only if it prompts impending lawless behaviour should it become unlawful.
• When someone compares an opponent to a stigmatised group of people or a bad person to invalidate his or her argument, it is known as the guilt by association fallacy. The concept is that the person is “guilty” just because he or she resembles this “evil” group, and hence should not be listened to about anything.
• In Sri Indra Das vs. State of Assam (2011), it was also determined that Section 3(5) of the Terrorist and disruptive activities (Prevention) Act, 1987 and Section 10 of the Unlawful Activities (Prevention) Act, 1967, which indict mere members of a banned organisation, cannot be interpreted literally and must be read in conjunction with Article 21 of the Constitution, and so must be read down. By interpreting these laws in this way, it must be held that a person’s membership in a banned organisation does not automatically make him a criminal unless he uses violence or incites others to use violence. 
• Markandey Katju also stated in one of his articles that the Bombay high court in the Bhima Koregaon case should change its decision to convict the accused in the case and should reaffirm the Brandenburg test. According to him, in recent times, the basic constitutional rights of liberty and freedom of speech have been under attack and higher courts have to protect these rights.

Conclusion

The Supreme Court of the US made a legally and morally convincing conclusion in allowing offensive speech as long as it does not threaten immediate harm. Unfortunately, political functionaries in India are prone to get enraged and are unable to endure criticism. Therefore the rights are not absolute. Thus, these people charge their critics with sedition or impose preventive detention laws, as the Maharashtra government did in the case of cartoonist Aseem Trivedi, the West Bengal government in the case of Jadavpur University Professor Ambikesh Mahapatra, and the Tamil Nadu government in the case of folk singer Kovan, as evidenced in the instances of individuals convicted of inciting violence in Bhima Koregaon or speaking up for the impoverished or marginalised elements of society has become extremely risky.

References

• Brandenburg v. Ohio | The First Amendment Encyclopedia
• Free Speech and the Brandenburg Test. 
• Pune Police Should Remember, SC Has Already Rejected Doctrine of ‘Guilt by Association’ 
• https://www.amnesty.org.uk/free-speech-freedom-expression-human-right#:~:text=’Freedom%20of%20speech%20is%20the,all%20kinds%2C%20by%20any%20means.&text=Freedom%20of%20speech%20and%20the,that%20may%20be%20deeply%20offensive. 

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