Brandenburg v. Ohio, 395 U.S. 444 (1969)
A state may not forbid speech advocating the use of force or unlawful conduct unless this advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.
A Ku Klux Klan leader in Ohio, Clarence Brandenburg, asked a Cincinnati reporter to cover a KKK rally in Hamilton County for his television station. The resulting footage captured people burning a cross and making speeches while clad in the usual KKK attire of hooded robes. The speeches mentioned taking revenge on African-Americans as well as Jews, potentially by marching on Washington on the Fourth of July. They also criticized the President, the Congress, and the Supreme Court for allegedly colluding with non-whites against whites.
Once this footage became public, Ohio authorities charged Brandenburg (who had made one of the speeches) with advocating violence under a criminal syndicalism statute. The law dated from the First World War era and responded to then-widespread concerns about anarchists, socialists, and communists. Brandenburg was convicted and sentenced to one to 10 years in prison, as well as a fine. His conviction was affirmed by a state appellate court and dismissed by the state Supreme Court.
Moving beyond the clear and present danger test articulated by Justice Holmes in Schenck v. U.S. (1919), the opinion proposed an imminent lawless action test for political speech that seems to advocate overthrowing the government. It ruled that the government cannot forbid this type of speech unless it is both directed to inciting such action and is likely to actually incite it. By contrast, simply advocating a viewpoint without encouraging people to act on it, or encouraging people to act in a way that they could not be expected to act, would be protected by the First Amendment. This decision also marked the end of the bad tendency test created in decisions like Abrams v. U.S. and Whitney v. California. The Court found that the restrictions on the government's ability to control speech needed to be tightened beyond that deferential standard.
- Hugo Lafayette Black (Author)
Black mostly agreed with Douglas (see below) and also pointed out that the majority's test was more novel than it claimed, discarding most significant precedents.
- William Orville Douglas (Author)
Taking First Amendment jurisprudence to its limit, Douglas felt that any law restricting speech should be facially unconstitutional under the First Amendment, no matter how significant the government interest advanced. There might be some flexibility during wartime, he hinted, but even expressive conduct should be protected unequivocally in most instances. Only if speech and action were "brigaded," or so inextricably tied together that the speech essentially becomes action, might the First Amendment not apply in ordinary peacetime situations.Case Commentary
The conditions that must be met to impose criminal liability for speech that incites others to illegal actions are imminent harm, a likelihood that the incited illegal action will occur, and an intent by the speaker to cause imminent illegal actions. This precedent remains the principal standard in this area of First Amendment law, since the Supreme Court has not revisited it. The absence of later decisions may result in part from the standard being constructed in such a way that it is very difficult for the government to meet. The slim possibility of success may make it not worth the effort to promulgate or defend a law in the area in most situations.
U.S. Supreme CourtBrandenburg v. Ohio, 395 U.S. 444 (1969)
Brandenburg v. Ohio
Argued February 27, 1969
Decided June 9, 1969
395 U.S. 444
Appellant, a Ku Klux Klan leader, was convicted under the Ohio Criminal Syndicalism statute for
"advocat[ing] . . . the duty, necessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform"
"voluntarily assembl[ing] with any society, group or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism."
Neither the indictment nor the trial judge's instructions refined the statute's definition of the crime in terms of mere advocacy not distinguished from incitement to imminent lawless action.
Held: Since the statute, by its words and as applied, purports to punish mere advocacy and to forbid, on pain of criminal punishment, assembly with others merely to advocate the described type of action, it falls within the condemnation of the First and Fourteenth Amendments. Freedoms of speech and press do not permit a State to forbid advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. Whitney v. California, 274 U. S. 357, overruled.