Glenn Greenwald writes:
Alex Seitz-Wald of Think Progress rightly takes Sen. Rand Paul to task for going on Sean Hannity’s radio program — one week after commendably leading opposition to the Patriot Act on civil liberties grounds — and advocating the arrest of people who “attend radical political speeches.” After claiming to be against racial and religious profiling, Paul said: ”But if someone is attending speeches from someone who is promoting the violent overthrow of our government, that’s really an offense that we should be going after — they should be deported or put in prison.” Seitz-Wald correctly notes the obvious: ”Paul’s suggestion that people be imprisoned or deported for merely attending a political speech would be a fairly egregious violation on the First Amendment, not to mention due process.”
Indeed, the First Amendment not only protects the mere “attending” of a speech “promoting the violent overthrow of our government,” but also the giving of such a speech. The government is absolutely barred by the Free Speech clause from punishing people even for advocating violence. That has been true since the Supreme Court’s unanimous 1969 decision in Brandenburg v. Ohio, which overturned the criminal conviction of a Ku Klux Klan leader who had threatened violence against political officials in a speech.
The KKK leader in Brandenburg was convicted under an Ohio statute that made it a crime to ”advocate . . . the duty, necessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform” and/or to “voluntarily assemble with any society, group, or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism.” The Court struck down the statute on the ground that it “purports to punish mere advocacy” and thus “sweeps within its condemnation speech which our Constitution has immunized from governmental control.” The Court ruled that “except where such advocacy is directed to inciting or producing imminent lawless action” — meaning conduct such as standing outside someone’s house with an angry mob and urging them to burn the house down that moment — “the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force“ (emphasis added).