The right to protest is one of the people’s most fundamental freedoms, but what about speech that veers towards lawlessness or social disorder? During most of the 20th century, governments put speakers in jail for producing a “clear and present danger.” Under that rule, Eugene Debs went to prison for denouncing World War I and Charlotte Whitney went to jail for belonging to the Communist Party. As far as the government was concerned, their ideas were too dangerous to be heard in public.

In 1969, the Supreme Court changed the rule. Only words that caused “immanent lawless action” could be suppressed. The case behind this decision, Brandenburg v. Ohio, involved the speech of a Klansman at a Klan rally during their campaign of terror. Thanks to the successful advocacy of Black and Jewish ACLU lawyers, extremists could no longer be imprisoned for their speech.

This presentation considers the arguments and paradoxes of the Brandenburg decision. How many Americans are still willing to defend Clarence Brandenburg’s right to speak?