Brandenburg v. Ohio
Supreme Court of the United States
Argued February 27, 1969 Decided June 9, 1969
Full case name: Clarence Brandenburg v. State of Ohio Citations: 395 U.S. 444; 89 S. Ct. 1827; 23 L. Ed. 2d 430; 1969 U.S. LEXIS 1367; 48 Ohio Op. 2d 320 Prior history: Defendant convicted, Court of Common Pleas, Hamilton County, Ohio, (Dec. 5, 1966); affirmed without opinion, Court of Appeals of the First Appellate District of Ohio, (Feb. 16, 1968); appeal dismissed without opinion, Supreme Court of Ohio (June 12, 1968); probable jurisdiction noted, 393 U.S. 948 (1968) Subsequent history: None
Holding
Ohio's criminal syndicalism statute violated the First Amendment, as applied to the state through the Fourteenth, because it broadly prohibited the mere advocacy of violence rather than the constitutionally unprotected incitement to imminent lawless action.
Court membership
Chief Justice: Warren E. Burger Associate Justices: Hugo Black, William O. Douglas, John Marshall Harlan II, William J. Brennan, Potter Stewart, Byron White, Thurgood Marshall
Case opinions
Per curiam. Concurrence by: Black Concurrence by: Douglas
Laws applied
U.S. Const. amends. I, XIV; Ohio Rev. Code § 2923.13

Brandenburg v. Ohio, 395 U.S. 444 (1969), was a United States Supreme Court case based on the First Amendment to the U.S. Constitution. It held that government cannot punish inflammatory speech unless it is directed to inciting and likely to incite imminent lawless action. Image File history File links Seal_of_the_United_States_Supreme_Court. ... Federal courts Supreme Court Chief Justice Associate Justices Elections Presidential elections Midterm elections Political Parties Democratic Republican Third parties State & Local government Governors Legislatures (List) State Courts Counties, Cities, and Towns Other countries Politics Portal      The Supreme Court of the United States (SCOTUS) is the highest judicial body in the... Imminent lawless action is a term used in the United States Supreme Court case Brandenburg v. ... Warren Earl Burger (September 17, 1907 – June 25, 1995) was Chief Justice of the United States from 1969 to 1986. ... Hugo Black Hugo LaFayette Black (February 27, 1886 – September 25, 1971) was a Justice of the Supreme Court of the United States (1937 - 1971). ... William Orville Douglas (October 16, 1898 – January 19, 1980) was a United States Supreme Court Associate Justice. ... John Marshall Harlan II (May 20, 1899 – December 29, 1971) was an Associate Justice of the United States Supreme Court. ... William J. Brennan, official portrait, 1976. ... Potter Stewart (January 23, 1915 – December 7, 1985) was an Associate Justice of the United States Supreme Court. ... Byron Raymond White (June 8, 1916 – April 15, 2002) won fame both as a football running back and as an associate justice of the Supreme Court of the United States. ... Thurgood Marshall (July 2, 1908 – January 24, 1993) was an American jurist and the first African American to serve on the Supreme Court of the United States. ... The Bill of Rights in the National Archives The First Amendment to the United States Constitution is a part of the United States Bill of Rights. ... Amendment XIV in the National Archives The Fourteenth Amendment to the United States Constitution (Amendment XIV) is one of the post-Civil War amendments, intended to secure rights for former slaves. ... For the Stargate SG-1 episode, see 1969 (Stargate SG-1). ... Federal courts Supreme Court Chief Justice Associate Justices Elections Presidential elections Midterm elections Political Parties Democratic Republican Third parties State & Local government Governors Legislatures (List) State Courts Counties, Cities, and Towns Other countries Politics Portal      The Supreme Court of the United States (SCOTUS) is the highest judicial body in the... The Bill of Rights in the National Archives The First Amendment to the United States Constitution is a part of the United States Bill of Rights. ... Wikisource has original text related to this article: Constitution of the United States of America Page one of the original copy of the Constitution. ... Imminent lawless action is a term used in the United States Supreme Court case Brandenburg v. ...

Background of the case

Clarence Brandenburg, a Ku Klux Klan leader in rural Ohio, contacted a reporter at a Cincinnati television station and invited him to come and cover a KKK rally in Hamilton County. Portions of the rally were taped, 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 "niggers," "Jews," and those who supported them. One of the speeches also claimed that "our President, our Congress, our Supreme Court, continues to suppress the white, Caucasian race," and announced plans for a march on Washington to take place July 4. Brandenburg was later convicted of 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 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." He was fined $1000 and sentenced to one to ten years in prison. Members of the second Ku Klux Klan at a rally during the 1920s. ... Official language(s) None Capital Columbus Largest city Columbus Largest metro area Cleveland Area  Ranked 34th  - Total 44,825 sq mi (116,096 km²)  - Width 220 miles (355 km)  - Length 220 miles (355 km)  - % water 8. ...

Brandenburg's conviction was affirmed by an Ohio appellate court despite his claim that the statute violated his First and Fourteenth Amendment right to freedom of speech. The Ohio Supreme Court dismissed his appeal without opinion. The rather cursory way in which the Ohio courts dismissed Brandenburg's constitutional arguments is unsurprising in light of the state of First Amendment law in the pre-Brandenburg era. Although Yates v. United States, 354 U.S. 298 (1957), 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, 341 U.S. 494 (1951), all Yates purported to do was construe a federal statute, the 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. Holding The Court held that for the Smith Act to be violated, people must be encouraged to do something, rather than merely to believe in something. ... Holding Defendants convictions for conspiring, through their participation in the Communist Party, to overthrow the U.S. government by force were not prohibited by the First Amendment. ...

The Court's decision

The U.S. Supreme Court reversed Brandenburg's conviction, holding that government cannot constitutionally punish abstract advocacy of force or law violation. The unanimous majority opinion was per curiam (issued from the Court as an institution rather than as authored and signed by an individual justice): it had originally been drafted by Justice Abe Fortas before he was forced to resign in the midst of an ethics scandal, and Justice William J. Brennan made only minor changes to the opinion before it was published. Justices Black and Douglas concurred separately. A per curiam decision (or opinion) is a ruling handed down by a court with multiple judges in which the decision was made by the court acting as a whole, as opposed to statements made by individual judges. ... Abe Fortas (June 19, 1910–April 5, 1982) was a U.S. Supreme Court associate justice. ... William J. Brennan, official portrait, 1976. ...

Per curiam opinion

The per curiam majority opinion overturned the Ohio Criminal Syndicalism statute, overruled Whitney v. California, 274 U.S. 357 (1927), and articulated a new test—the "imminent lawless action" test—for judging so-called seditious speech under the First Amendment: A per curiam decision (or opinion) is a ruling handed down by a court with multiple judges in which the decision was made by the court acting as a whole, as opposed to statements made by individual judges. ... Holding Defendants conviction under Californias criminal syndicalism statute for membership in the Communist Labor Party did not violate her free speech rights as protected under the Fourteenth Amendment, because states may constitutionally prohibit speech tending to incite to crime, disturb the public peace, or threaten the overthrow of...

"[our] 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."

The three distinct elements of this test (intent, imminence, and likelihood) have distinct precedential lineages. Judge Learned Hand was possibly the first judge to advocate the intent standard, in Masses Publishing Co. v. Patten, 244 F. 535 (S.D.N.Y. 1917), reasoning that "[i]f one stops short of urging upon others that it is their duty or their interest to resist the law, it seems to me one should not be held to have attempted to cause its violation." The Brandenburg intent standard is more speech-protective than Hand's formulation, which contained no temporal element. Billings Learned Hand (January 27, 1872 – August 18, 1961) — usually called simply Learned Hand — was a famed American judge and an avid supporter of free speech, though he is most remembered for applying economic reasoning to American tort law. ... 244 F. 535, (S.D.N.Y. 1917), is a First Amendment case decided in 1917 that addressed advocacy of law violation. ...

The imminence element was a departure from earlier rulings. In Schenck v. United States, 249 U.S. 47 (1919), the Court had adopted a "clear and present danger" test that Whitney v. California had 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, a case dealing with prosecution of alleged Communists under the Smith Act for advocating the overthrow of the government, used the clear and present danger test while still upholding the defendants' convictions for acts that could not possibly have led to a speedy overthrow of the government. Brandenburg explicitly overruled the bad tendency test and made the time element of the clear and present danger test more defined and more rigorous. Holding Defendants criticism of the draft was not protected by the First Amendment, because it created a clear and present danger to the enlistment and recruiting practices of the U.S. armed forces during a state of war. ... Clear and present danger is a term used in the case Schenck v. ... Holding Defendants convictions for conspiring, through their participation in the Communist Party, to overthrow the U.S. government by force were not prohibited by the First Amendment. ... The Alien Registration Act or Smith Act () of 1940 is a United States federal statute that made it a criminal offense for anyone to knowingly or willfully advocate, abet, advise or teach the duty, necessity, desirability or propriety of overthrowing the Government of the United States or of any State...

Interestingly, the per curiam opinion cited to Dennis v. United States as though it were good law and amenable to the result reached in Brandenburg. In point of fact, Brandenburg essentially eviscerated Dennis's central holding and held that "mere advocacy" of any doctrine, including one that assumed the necessity of violence or law violation, was per se protected speech. It may be that principles of stare decisis figured in the Court's decision to avoid overruling the relatively recent Dennis, but the distance between the two cases' approach is obvious and irreconcilable. Stare decisis (Latin: , Anglicisation: , to stand by things decided) is a Latin legal term, used in common law to express the notion that prior court decisions must be recognized as precedents, according to case law. ...

Concurrences

Justice Hugo Black, renowned civil libertarian and First Amendment absolutist, filed a short concurrence indicating his agreement with Justice William O. Douglas's longer opinion and pointing out that the per curiam's reliance on Dennis was more symbolic than actual. Hugo Black Hugo LaFayette Black (February 27, 1886 – September 25, 1971) was a Justice of the Supreme Court of the United States (1937 - 1971). ... William Orville Douglas (October 16, 1898 – January 19, 1980) was a United States Supreme Court Associate Justice. ...

Justice Douglas's concurrence reflected the absolutist position that only he and Black ever fully subscribed to, namely that the phrase "no law" in the First Amendment ought to be interpreted very literally, and that all speech is immune from prosecution, regardless of the governmental interests advanced in suppressing some particular instance of speech. He briefly traced the history of the clear and present danger test, illustrating how it had been used over the years since its debut in Schenck to dismiss dozens of what Douglas viewed as legitimate First Amendment claims.

A short but interesting section of Douglas's opinion indicated that he might be open to allowing the government greater latitude in controlling speech during time of "declared war" (making clear that he was not referring to the then-current Vietnam conflict), although he only phrased that possibility in terms of doubt (as opposed to his certainty that the clear and present danger test was irreconcilable with the First Amendment during time of peace).

Douglas also pointed out the legitimate role of symbolic speech in First Amendment doctrine, using examples of a person ripping up a Bible to celebrate the abandonment of his faith or tearing a copy of the Constitution in order to protest a Supreme Court decision, and assailed the previous term's United States v. O'Brien, 391 U.S. 367 (1968), which had allowed for the prosecution of a man for burning his draft card. In all these situations, Douglas argued, an action was a vital way of conveying a certain message, and thus the action itself deserved First Amendment protection. Holding A criminal prohibition against burning draft cards did not violate the First Amendment, because its effect on speech was only incidental, and it was justified by the significant government interest in maintaining an efficient and effective military draft system. ...

Finally, Douglas dealt with the classic example of a man "falsely shouting fire in a theatre and causing a panic." In order to explain why someone could be legitimately prosecuted for this, Douglas called it an example in which "speech is brigaded with action." In the view of Douglas and Black, this was probably the only sort of case in which a person could be prosecuted for speech.

Subsequent developments

The Brandenburg test was the Court's last major statement on what government may do about inflammatory speech that seeks to incite others to lawless action. It resolved the debate between those who urged greater government control of speech for reasons of security and those who favored allowing as much speech as possible and relying on the marketplace of ideas to reach a favorable result, leaving the law in a state along the lines of that which Justices Louis Brandeis, and, post-Schenck, Oliver Wendell Holmes advocated in several dissents and concurrences during the late 1910s and early 1920s. As of 2006, the Brandenburg test is still the standard used for evaluating attempts to punish inflammatory speech, and it has not been seriously challenged since it was laid down in 1969. Very few cases have actually reached the Court during the past decades that would test the outer limits of Brandenburg, so the test remains largely unqualified. Rationale for freedom of expression based on an analogy of communication to goods in the economic marketplace. ... Louis Dembitz Brandeis (November 13, 1856 – October 5, 1941) was an American litigator, Supreme Court Justice, advocate of privacy, and developer of the Brandeis Brief. ... Oliver Wendell Holmes, Jr. ... For the Manfred Mann album, see 2006 (album). ...

See also

• Dennis v. United States
• Whitney v. California

Holding Defendants convictions for conspiring, through their participation in the Communist Party, to overthrow the U.S. government by force were not prohibited by the First Amendment. ... Holding Defendants conviction under Californias criminal syndicalism statute for membership in the Communist Labor Party did not violate her free speech rights as protected under the Fourteenth Amendment, because states may constitutionally prohibit speech tending to incite to crime, disturb the public peace, or threaten the overthrow of...

External links

• Text of decision (at FindLaw.com)
• First Amendment Library entry on Brandenburg v. Ohio
• Per Curiam Opinion (Cornell Law)