Brandenburg v. Ohio
Case Overview
CITATION
OVERRULED (IN PART)
359 U.S. 444 (1969)
ARGUED ON
February 27, 1969
DECIDED ON
June 9, 1969
DECIDED BY
Schenck v. United States (1919)
Abrams v. United States (1919)
Legal Issue
Did Ohio’s Criminal Syndicalism statute, which prohibited individuals from engaging in speech advocating illegal activities, violate the First and Fourteenth Amendments?
Holding
Yes, Ohio’s Criminal Syndicalism statute violated the First and Fourteenth Amendments.
Summary
Unanimous decision for Brandenburg
Brandenburg
Ohio
Black
Douglas
Brennan
Stewart
Warren
Harlan
White
Marshall
In September 1926, a KKK parade drew 30,000 Klansmen to Washington, DC. | Credit: Hum Images/Getty Images
Background
In 1964, Clarence Brandenburg, a KKK leader in rural Ohio, invited a Cincinnati television station to cover a KKK rally planned to take place in Hamilton County that summer. The news crew filmed the rally, showing men dressed in robes in hoods carrying weapons, burning crosses, and making speeches. In one speech, members referenced “revengence” against Blacks and Jews and in another, they advocated for the forced expulsion of Black Americans to Africa and Jewish Americans to Israel. In addition, the group announced plans to march on Congress on the Fourth of July as a show of strength.
After the videos were released, Brandenburg was arrested under Ohio’s criminal syndicalism statute for advocating violence in his speech at the KKK rally. The law stated that an individual was subject to arrest if they “advocate. . . the duty, necessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform” or “voluntarily assemble with any society, group or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism.”
Brandenburg was found guilty and sentenced to pay a $1,000 fine and serve one to ten years in confinement. Brandenburg appealed, arguing that the state law infringed upon his right to freedom of speech, but the Ohio First District Court of Appeals upheld his conviction. The Ohio Supreme Court then dismissed his appeal without issuing an opinion.
Opinion of the Court
In a per curiam opinion, the Court held that Ohio’s criminal syndicalism statute was unconstitutional under the First and Fourteenth Amendments. The Court described the effect of the statute as far too broad to be permissible under the Constitution, writing that the statute “purports to punish mere advocacy and to forbid, on pain of criminal punishment, assembly with others merely to advocate the described type of action.” The Court, however, acknowledged that there is a balance between the right to freedom of speech and legitimate government interests in limiting that speech. The Court established the imminent lawless danger test, which stipulated that “the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe 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.”
Concurring Opinion by Justice Black
In his brief concurrence, Justice Hugo Black noted that while he agrees with much of the Court’s per curiam opinion, he believes that the clear and present danger test has no place in the interpretation of the First Amendment.
Concurring Opinion by Justice Douglas
In his concurrence, Justice William Douglas took a more expansive view of the First Amendment and agreed with Justice Black’s finding, writing that he sees “no place in the regime of the First Amendment for any ‘clear and present danger’ test, whether strict and tight as some would make it, or free-wheeling. . .”
Citing the Court’s opinions in Schenck v. United States (1919), Debs v. United States (1919), Abrams v. United States (1919), Gitlow v. New York (1925), and United States v. O’Brien (1968), Douglas examined the case law behind the clear and present danger test and wrote that “[w]hen one reads the opinions closely and sees when and how the ‘clear and present danger’ test has been applied, great misgivings are aroused.” Douglas referenced Justice Holmes’ example of “falsely shouting fire in a theater and causing a panic” as an instance in which the clear and present danger test could be applied but asserted that it was one of the few examples in which an individual could face a criminal penalty for their speech. He wrote that “[t]he line between what is permissible and not subject to control and what may be made impermissible and subject to regulation is the line between ideas and overt acts.” Douglas also believed that symbolic speech was central to the right to freedom of speech and expression, including physical actions. Citing O’Brien, he wrote that action is often a mode of expression within the protection of the First Amendment.