Brandenburg v. Ohio

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Brandenburg v. Ohio, 395 U.S. 444 (1969), is a landmark decision of the United States Supreme Court interpreting the First Amendment to the U.S. Constitution .[1] The Court held that the government cannot punish inflammatory speech unless that speech is "directed to inciting or producing imminent lawless action and is likely to incite or produce such action".[2] [3] : 702  Specifically, the Court struck down Ohio's criminal syndicalism statute, because that statute broadly prohibited the mere advocacy of violence. In the process, _Whitney v. California _ (1927)[4] was explicitly overruled, and _Schenck v. United States _ (1919),[5] _Abrams v. United States _ (1919),[6] _Gitlow v. New York _ (1925),[7] and _Dennis v. United States _ (1951)[8] were overturned.

Contents

• 1 Background

• 2 Decision

  • 2.1 Per curiam opinion

    • 2.1.1 Brandenburg test ("imminent lawless action" test)

  • 2.2 Concurrences

• 3 Subsequent developments

• 4 See also

• 5 References

• 6 External links

Background

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Clarence Brandenburg, a Ku Klux Klan (KKK) leader in rural Ohio , contacted a reporter at a Cincinnati television station and invited him to cover a KKK rally that would take place in Hamilton County in the summer of 1964.[9] Portions of the rally were filmed, showing several men in robes and hoods, some carrying firearms, first burning a cross and then making speeches. One of the speeches made reference to the possibility of "revengeance" against "black peoples ", "Jews ", and those who supported them and also claimed that "our President , our Congress , our Supreme Court , continues to suppress the white, Caucasian race ", and announced plans for a march on Congress to take place on the Fourth of July .[10] Another speech advocated for the forced expulsion of African Americans to Africa and Jewish Americans to Israel.[11]

Brandenburg was charged with advocating violence under Ohio's criminal syndicalism statute for his participation in the rally and for the speech he made. In relevant part, the statute – enacted in 1919 during the First Red Scare – proscribed "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" and "voluntarily assembl[ing] with any society, group or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism".

Convicted in the Court of Common Pleas of Hamilton County , Brandenburg was fined $1,000 and sentenced to one to ten years in prison. On appeal, the Ohio First District Court of Appeal affirmed Brandenburg's conviction, rejecting his claim that the statute violated his First Amendment and Fourteenth Amendment right to freedom of speech . The Supreme Court of Ohio dismissed his appeal without opinion.

Although _Yates v. United States _ (1957)[12] had overturned the convictions of mid-level Communist Party members in language that seemed suggestive of a broader view of freedom of expression rights than had been accorded them in _Dennis v. United States _ (1951),[8] all Yates purported to do was construe a federal statute, the 1940 Smith Act . Thus, Dennis's reading of the First Amendment remained in force: advocacy of law violation, even as an abstract doctrine, could be punished under law consistent with the free speech clause.

Decision

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The U.S. Supreme Court reversed Brandenburg's conviction, holding that government cannot constitutionally punish abstract advocacy of force or law violation. The majority opinion was _per curiam _, issued from the Court as an institution, rather than as authored and signed by an individual justice. The earlier draft had originally been prepared by Justice Abe Fortas before he was forced to resign in the midst of an ethics scandal, and it would have included a modified version of the clear and present danger test. In finalizing the draft, Justice Brennan eliminated all references to it by substituting the "imminent lawless action" language.[13] Justices Black and Douglas concurred separately.

Per curiam opinion

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The _per curiam _ majority opinion struck down the Ohio Criminal Syndicalism statute, overruled _Whitney v. California _ (1927),[4] and articulated a new test – the "imminent lawless action" test – for judging what was then referred to as "seditious speech" under the First Amendment:

Whitney has been thoroughly discredited by later decisions. See _Dennis v. United States _, 341 U.S. 494, at 507 (1951). These later decisions have fashioned the principle 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.[14]

In _Schenck v. United States _ (1919)[5] the Court had adopted a "clear and present danger " test that _Whitney v. California _ (1927) subsequently expanded to a "bad tendency " test: if speech has a "tendency" to cause sedition or lawlessness, it may constitutionally be prohibited. _Dennis v. United States _ (1951), a case dealing with prosecution of alleged Communists under the Smith Act for advocating the overthrow of the government, used the clea

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