The Upside of Brandenburg v. Ohio


Arts & Culture

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The first time I met an aspiring white supremacist was during a class trip to a county career center in southwest Ohio. He was tall and had buzzed hair and told my friend Niquelle and me that he loved the movie American History X. He wanted to be like Edward Norton’s character, he told us, “but before the part where he turned all pussy.” Norton’s character is an American neo-Nazi who is sent to prison—where he undergoes his aforementioned conversion—after forcing a black man to place his mouth around a curb and then executing him by stomping on the back of his skull. I remember looking over at Niquelle, who is black. I remember feeling my breath catch in my chest, upon which my Star of David necklace dangled, outside my shirt.

Growing up in southwest Ohio, I was aware of the way I could become more or less invisible—more or less white—based on whether I tucked in my necklace or wore it out. (A soggy sort of superpower: Jewboy to the rescue?) I often wore it out in new places, perhaps with an edge of defiance, seeking some sort of confrontation. But then when it came, like on that day—

I didn’t say a word.

I asked Niquelle about this incident recently, and she told me she also remembered the day and the guy vividly, but couldn’t recall the context: “Did he just look at us and let out this terrible thought? Did someone say something that made him angry?” We both remembered being whisked away by the teacher or staff person who was leading the tour, and then that was that.

Later, for a period of a few weeks, a group of kids at our high school started cracking jokes that centered around “curb stomping.” I remember one guy grabbing my shoulder right after making one such joke. Don’t be so sensitive, dude.

This was 2004. Exactly four decades earlier, a bit farther south in Ohio, a full-fledged white supremacist made a speech that would fundamentally change what can legally be said in these United States of America. The date was Sunday, June 28, 1964. A journalist and cameraman from the Cincinnati-based TV station WLWT Channel 5 made their way to a Hamilton County farm just outside the city, where they had been invited by a local Ku Klux Klan leader named Clarence Brandenburg to cover his group’s rally.

Three weeks earlier, on June 5, 1964, in my hometown of Yellow Springs, Ohio, a barber named Lewis Gegner decided to sell his shop and leave town rather than desegregate his business, after facing a years-long nonviolent campaign that culminated with the arrest of 108 activists. The Ku Klux Klan would later invite him to speak at a rally in Dayton, Ohio, in recognition of his “steadfastness.”

That same month, on June 22, in nearby Oxford, Ohio, Freedom Summer volunteers learned that three of their colleagues had gone missing while investigating a KKK church bombing in Mississippi the night before: a black civil rights activist named James Earl Chaney and two Jewish activists named Michael Schwerner and Andrew Goodman. According to the historian Taylor Branch, a Mississippi sheriff responded to their disappearance by saying, “If they’re missing, they just hid somewhere trying to get a lot of publicity, I figure.”

Their bodies were found on August 4. According to an article by the civil rights leader Marian Wright Edelman, James Earl Chaney had been chained to a tree, tortured, and castrated before being shot thrice. Michael Schwerner cradled Chaney’s body in his arms before being shot in the heart. Andrew Goodman tried to run and was shot. An autopsy showed that he had red clay fragments in his lungs and fists, indicating that he was likely buried while still alive.

On the Hamilton County farm near the end of June 1964, forty-four-year-old Clarence Brandenburg gave a speech to an assembled group of a dozen men clad in white robes and hoods. In a later part of the news channel’s footage, the Klansmen are seen marching in circles around a burning cross, some of them carrying guns, shouting things including “Freedom for the Whites” and “Bury the niggers.”

“We’re not a revengent organization,” declared Brandenburg, who was wearing a red hood over his white robe. “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 revengeance taken.” In a second clip, Brandenburg is seen repeating a similar speech, and adding, “Personally, I believe the nigger should be returned to Africa, the Jew returned to Israel.”

And then that was that.

The group dispersed, and everyone went home for supper, or a nap, or a beer, or a game of gin rummy, or whatever one does after attending a Ku Klux Klan rally.

This word revengeance was later mocked, and Brandenburg’s remarks were labeled “self-evidently stupid and silly”—by his own defense lawyer. But that’s the thing about white supremacists: their rhetoric is mostly self-evident stupidity and silliness nestled between bursts of horrific vitriol. As cathartic as it can feel to mock, said silliness doesn’t make their rhetoric any less deadly serious. Or less deadly.


Which brings us back to the central question of Brandenburg v. Ohio, a question that is as relevant in our current era as it was in the sixties: How deadly is such rhetoric?

Deadly enough that it should be illegal?

The answer given by the State of Ohio was yes.

Following the broadcast of his speech at the KKK rally, Clarence Brandenburg was arrested on August 6, 1964, two days after the bodies of the murdered activists were found in Mississippi, and charged under Ohio’s criminal syndicalism statute, which, like other similar statutes around the country, was originally put on the books primarily as a bludgeon against communist sympathizers and which criminalized advocating “sabotage, violence, or … terrorism … as a means of accomplishing … political reform.”

Brandenburg was convicted, fined a thousand dollars, and sentenced to one to ten years in prison. His appeals were rejected by lower courts and by the Ohio Supreme Court. Brandenburg had been laid off from his job at GE in 1958 and had filed for bankruptcy in 1959. So when the ACLU offered to appeal the case, pro bono, to the United States Supreme Court, Brandenburg accepted. His lawyer? A forty-eight-year-old Jewish ACLU volunteer named Allen Brown.

Brown died in 2004, but his friend and colleague Norman Slutsky said of him: “If ever there was a Jewish saint, it was Allen. He was an absolute mensch. One of the most beautiful men I knew.” Brown was short, a little on the hefty side, and had a raspy voice, accentuated by his constant smoking. Once a judge reprimanded him for his constant motion during a trial and threatened to hold him in contempt of court if he didn’t keep his hand on the podium at all times. During his closing arguments, Brown stuck one finger out, placed it on the podium, and then danced as far as he could, in every direction, with his fingertip still touching the wood. In another case, an obscenity case, Norman Slutsky told of Brown, the Jewish saint, picking up a giant dildo brought as evidence by the prosecution and waggling it in the faces of the jury members, growling: “This may disgust you, and this may disgust you. But it is not obscene.” Allen Brown was not a religious man, but he was a true believer in the First Amendment. When he died, his family asked that donations be made to the ACLU.

Also representing Brandenburg on behalf of the ACLU was one of the organization’s two national lawyers: a thirty-two-year-old African American attorney named Eleanor Holmes Norton, now the congressional representative for the District of Columbia. Norton had graduated from Antioch College in Yellow Springs, Ohio. A 1960 article in the Antioch Record describes how Norton, known then as Ellie Holmes, coordinated efforts between the Antioch chapter of the NAACP, the local ACLU, and other activists to desegregate all of the still-segregated businesses in town. (The only holdout by the time Norton left Yellow Springs was Gegner’s barbershop.) In 1964, Norton traveled to Mississippi as legal counsel to the Freedom Summer. She was, in short, no stranger to American racism and no friend to its proponents. In a 1969 interview, reprinted in the Record, she said: “If you look closely at the color of my skin and the texture of my hair, you will see that I could only be in this for the principles involved. Self-interest becomes an absurdity.”

And so the case in which a Klansman, represented by black and Jewish ACLU lawyers, faced off against the State of Ohio got underway.

In the oral arguments before the U.S. Supreme Court, the lawyer representing Ohio, Leonard Kirschner, made the following argument as to why Brandenburg’s speech should be illegal: “If I were to run down Harlem, shall we say, and say ‘Bury the Negro,’ ‘Send them back to the black Africa’—”

Justice Thurgood Marshall, the first African American Supreme Court justice, interrupted: “He wouldn’t last that long.”

Laughter in the otherwise somber courtroom.

Six minutes later, Allen Brown began his rebuttal by stating that the massive violation of the First Amendment found in the State of Ohio’s laws can in fact be illustrated by Justice Marshall’s response to Kirschner’s hypothetical situation. “Justice Marshall,” Brown said, his gravelly voice rising, picking up speed, building to something important, “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.”

And then that was that.


The Court’s decision was unanimous: Ohio’s criminal syndicalism statute, and others like it around the country, was unconstitutional. Advocacy of violence in the abstract is not sufficient grounds for the government to prohibit speech. In order for the First Amendment to be curbed, according to the Brandenburg ruling, advocacy of violence must be “directed to inciting or producing imminent lawless action” and be “likely to incite or produce such action.”

In other words, the State of Ohio cannot arrest an aspiring white supremacist in a county career center who says, “I believe in killing blacks and Jews.” Government officials could intervene only in a case in which he said, “Let’s kill this black and this Jew, right now.”

A word, here, on white American bigotry and the identities of its obsessions. Baldwin, in 1967: “One does not wish, in short, to be told by an American Jew that his suffering is as great as the American Negro’s suffering. It isn’t.” He’s right, of course. Michael Schwerner and Andrew Goodman weren’t shot because they were Jews—except in the roundabout, romantic, fictional sort of way that links their Jewishness with their conscientious activism. The recent synagogue massacre in Pittsburgh did have a handful of American precedents—the lynching of Leo Frank, the murder of Alan Berg, the Jewish Community Center shootings in LA and Kansas City, and some others—but only a handful, not thousands. Bryan Stevenson’s Equal Justice Initiative estimates that 4,075 black Americans were murdered in racial terror lynchings between 1877 and 1950 alone. White supremacists are obsessed with both groups, but their murderous frenzy has been almost entirely directed toward only one. Perhaps this discrepancy is partially due to Jewboy’s aforementioned soggy superpower—the ability to blend into American whiteness. At its worst, we have Charles Leb, the owner of a kosher deli in Atlanta who, in 1963, when faced with nonviolent sit-ins calling on him to desegregate his establishment, enlisted the help of none other than the KKK; at its worst, we have Stephen Miller, who has helped give voice to an agenda of white supremacy in the Trump White House. But this discrepancy is also certainly due to the fact that one of the foundational pillars of the United States of America—and one that has never truly been renounced—is the dehumanization, murder, torture, persecution, and wild hatred of black people.

Thanks to Brown, Norton, and the ACLU, Brandenburg walked free. (Though a few years later, this pleasant fellow would be jailed for sixty days for harassing his Jewish neighbor by repeatedly telephoning to berate him with anti-Semitic tirades.) Was the ruling in Brandenburg a victory for the forces of revengeance and hatred in this country?

In 1977, the Nazi Party of America sought a permit to hold a parade in Skokie, Illinois, a majority-Jewish village that was home to thousands of Holocaust survivors. Under the standards set by Brandenburg, such a parade was obviously permissible: the U.S. Supreme Court unanimously upheld the Illinois Supreme Court’s decision to allow the march. The permit-seeking American Nazis were represented in court by the ACLU, as was the case in Charlottesville, forty years later. But we’ll get there.

In the meantime, the other side of the coin: after facing pushback from fellow activists for her work in Brandenburg, Eleanor Holmes Norton made a statement, reprinted in the Antioch Record in 1969, in which she argued that such cases were more likely to benefit radical activists than Brandenburg’s colleagues, and that her defense of racists’ right to express their views did not conflict with her “black militant philosophy.”

“Actually,” she said, “The right wing cases are real plums. When I defend a left winger’s right to dissent, I am not saying very much to the increasingly larger body of people in this country committed to repression of extreme ideas. But when I’m defending a racist’s rights, the object lesson is dramatically clear.”

In the 1973 case of Hess v. Indiana, based on the standards established in Brandenburg, the Court unanimously ruled to overturn the conviction of the antiwar protester Gregory Hess, who was arrested for declaring something along the lines of “We’ll take the fucking street later” within earshot of a cop. And in a 1982 ruling, NAACP v. Claiborne Hardware Co., the court unanimously ruled that the First Amendment, as interpreted in Brandenburg, protected a 1964 speech given by Charles Evers, the brother of the murdered civil rights leader Medgar Evers, in which he warned black residents of Port Gibson, Mississippi, against violating a local NAACP-led boycott of segregationist merchants. “If we catch any of you going into these racist stores,” he said, “we’re going to break your damn neck.” Even though some residents were indeed later met with violence after violating the boycott, the Court ruled, under the standards set forth by Brandenburg, that Evers’s speech could not reasonably be construed as intentionally and directly inciting imminent violence.

So where does this all leave us?

Probably in the streets of Charlottesville, Virginia, with hundreds of self-evidently silly and stupid white men and boys bearing Walmart torches and chanting about “Jews not replacing us.” The right of the Unite the Right rally to take place had been supported, in line with Brandenburg and Skokie and Hess and NAACP v. Claiborne Hardware, by the Virginia chapter of the ACLU.

The argument that the horrific violence that took place that day—including a group of white supremacists savagely beating and stomping on a black man named DeAndre Harris as he lay splayed out on the ground of a parking garage, and one white supremacist, from Ohio, ramming his car into a crowd of leftist counterprotesters and murdering Heather Heyer—had far more to do with failures on the part of law enforcement than with any sort of speech that day is, to my mind, a basically sound one. Still, it bears mentioning that after what happened in Charlottesville, the national ACLU did draw up a list of guidelines for case selection that, while decidedly not repudiating the Virginia ACLU’s decision to defend the white supremacist rally’s right to take place, did foreground the tension inherent in defending such speech and clarified that the ACLU will “generally not represent protestors who seek to march while armed.”


A few months after the rally in Charlottesville, my wife and I moved back to southwest Ohio. A few months after that, our daughter was born here: tiny, curious, adventurous, brilliant, Jewish.

Our town, Yellow Springs, still feels imbued with Antioch College’s progressive spirit and the legacy left by Eleanor Holmes Norton and other activists since. But there are Confederate flags flying in the rural stretches around us, and I’ve read article after article about white supremacists (around my age) living in the area: the Hitler-admiring white nationalist from Huber Heights; the founder of the website The Daily Stormer, whose main pages include “Race War” and “Jewish Problem,” based near Columbus. While Jews are not at the very top of American white supremacists’ list of bloodlust, these questions, questions of speech and threat and assembly and safety, do not feel purely academic or theoretical to me. There is no flippancy or cavalier intellectualization in my fingertips as I write, here in southwest Ohio, my tiny Jewish daughter napping in the other room, that even after Charlottesville, I think that Eleanor Holmes Norton and Allen Brown and the ACLU were right in their defense of Clarence Brandenburg.

Because in truth, the ideologies of Brandenburg and the Tiki torchers are not as divergent from the core ideologies of the American political regime as many think they are. In truth, throughout American history, government suppression of speech and expression has been far more frequently and viciously directed against leftists and radicals, against black militants and Jewish communists, than it has against the various Brandenburgs of this nation. In that light, the Brandenburg case appears as a form of aikido, in which Norton, Brown, and the ACLU harnessed the force of American white supremacism itself as a means of ultimately defending those who would seek to undermine American white supremacism and its cousins: bigotry, xenophobia, imperialism, and bellicosity. In other words, in challenging the government’s right to punish Brandenburg for saying heinous things, a counterintuitive but profound sliver of freedom was wrested from this deeply unfree country.

And for that, here in southwest Ohio, I am grateful.


Moriel Rothman-Zecher was born in Jerusalem and raised in southwest Ohio. His first novel, Sadness Is a White Bird, was a finalist for the Dayton Literary Peace Prize and the National Jewish Book Award, and was the winner of the Ohioana Book Award for Fiction. He is the recipient of the National Book Foundation’s 5 Under 35 Honor and a MacDowell Colony Fellowship for Literature. His work has been published in the New York Times, ZYZZYVA magazine, Runner’s World, Haaretz, and elsewhere. He lives in Yellow Springs, Ohio, with his wife and their daughter. He is currently working on his second novel, forthcoming from Farrar, Straus and Giroux in 2021.

From Fight of the Century, edited by Michael Chabon and Ayelet Waldman. Reprinted by permission of Avid Reader Press, an imprint of Simon & Schuster, Inc.