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 </figure>By TONY MAURO Special correspondent for the Freedom Forum Former President Donald Trump’s fiery Jan. 6 speech,
 made just before the U.S. Capitol riot began, led to his impeachment by
 the House of Representatives on a charge of “incitement of 
insurrection.”But as the Senate prepares for Trump’s trial to resume Feb. 9, Harvard law professor <a href="https://www.newsweek.com/impeachment-over-protected-speech-would-harm-constitution-opinion-1560512?amp=1" target="_blank">Alan Dershowitz</a>
 and other scholars have pointed to a 1969 Supreme Court decision that, 
in their view, gives First Amendment protection to speakers who urge 
listeners to use force in certain circumstances. The decision strictly 
defines the legal concept of “incitement.” It is&nbsp;certain to be invoked 
as a reason Trump could avoid conviction, assuming the trial touches on 
the riot, rather than other issues.The case, titled <a href="https://supreme.justia.com/cases/federal/us/395/444/" target="_blank">Brandenburg v. Ohio</a>, struck down a law that was used to prosecute Clarence Brandenburg,
 a Ku Klux Klan leader. Speaking at a rally in rural Ohio in 1964, 
Brandenburg said “revengeance” [sic] was needed against government 
institutions for suppressing the Caucasian race. Interestingly, he said 
that the “revengeance” would be wrought by “marching on Congress July 
the Fourth, four hundred thousand strong.”The high court ruled that state laws making it a crime merely to 
advocate the use of violence violate the First Amendment. Only when the 
advocacy is aimed at inciting “imminent lawless action,” and is likely 
to succeed, may government prohibit it, the court stated unanimously.Scholars who disagree that the Brandenburg ruling protects Trump 
argue he unequivocally incited imminent lawless action through comments 
he made shortly before the rally including, “You’ll never take back our 
country with weakness. You have to show strength and you have to be 
strong,” and “If you don’t fight like hell, you’re not going to have a 
country anymore.” Harvard Law School’s Einer Elhauge asserted in a <a href="https://www.washingtonpost.com/outlook/2021/01/14/trump-brandenburg-impeachment-first-amendment/">Washington Post column</a>, “Trump’s conduct clearly meets the legal standard that Brandenburg set.”As the sides invoke the ruling to support their positions in the coming days, here is a primer on Brandenburg v. Ohio.DATE: Decided June 9, 1969IMPACT: The Brandenburg decision is seen as one of 
the most expansive interpretations of the First Amendment ever announced
 by the Supreme Court. The late New York Times columnist Anthony Lewis
 wrote that Brandenburg “gave the greatest protection to what could be 
called subversive speech that it has ever had in the United States, and 
almost certainly greater than such speech has in any other country.”BACKGROUND: Following the assassination of President William McKinley
 in 1901 by an anarchist and the start of the communist movement in 
1917, states began passing anti-sedition laws and so-called “criminal 
syndicalism” statutes. These laws, passed in 33 states, prohibited 
teaching or advocating the use of violence or crime to bring about 
political or economic change. The motivation behind the syndicalism laws
 in most cases was to discourage the spread of socialist or communist 
anti-capitalist views.The Brandenburg case concerned not a communist, but a Klan leader. 
With the cameras of a local TV crew rolling, the red-hooded Clarence 
Brandenburg spoke to a Klan rally held at a farm in Hamilton County, 
Ohio, and made a threat laced with racist slurs: “We’re not a revengent 
organization, 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.” His pledge to march “on 
Congress July the Fourth” could not fit the definition of “imminent 
lawless action.”Based on his speech, Brandenburg was convicted for violating the 
state’s criminal syndicalism law, fined $1,000 and sentenced to one to 
10 years in prison. He appealed, challenging the law as a violation of 
his free speech rights. The Supreme Court of Ohio dismissed the appeal, 
setting the stage for U.S. Supreme Court review.VOTE: Brandenburg won. The eight sitting justices at the time were Chief Justice Earl Warren and Justices Hugo Black, William O. Douglas, John M. Harlan, William J. Brennan Jr., Potter Stewart, Byron White and Thurgood Marshall. The ruling was issued unsigned, rather than under the name of a specific justice. There were no dissents.Tony Mauro is contributing U.S. Supreme Court correspondent for 
the National Law Journal and ALM Media and a special correspondent for 
the Freedom Forum. This article includes excerpts from Mauro’s 2006 
book, “Illustrated Great Decisions of the Supreme Court, Second 
Edition.”

FIRST FIVE: A First Amendment case that may be key to Trump trial