Brandenburg v. Ohio
Citation: 395 U.S. 444 (U.S. Supreme Court, 1969)
Facts
Clarence Brandenburg, a Ku Klux Klan leader in Ohio, was convicted under Ohio’s Criminal Syndicalism statute after delivering speeches at a Klan rally that included threats against African Americans and Jews. The speeches were filmed and broadcast on local television.
Issue
Does Ohio’s Criminal Syndicalism statute, which punishes advocacy of violence or unlawful methods as a means of political reform, violate the First and Fourteenth Amendments?
Holding
A unanimous per curiam Court struck down the Ohio statute and overruled Whitney v. California (1927). The mere abstract advocacy of violence or law violation — even by extremist groups — is constitutionally protected.
Rule
The First Amendment prohibits the government from punishing the advocacy of illegal action unless: (1) the speech is directed to inciting or producing imminent lawless action, and (2) the speech is likely to incite or produce such action. Abstract advocacy, as opposed to incitement to imminent lawless action, is protected.
Significance
Brandenburg established the modern incitement test, replacing the older “clear and present danger” test from Schenck v. United States (1919) and Dennis v. United States (1951). It is the governing standard for distinguishing protected political speech from unprotected incitement. The two-part test — imminence and likelihood — gives broad protection to inflammatory political rhetoric that falls short of direct provocation to immediate unlawful action.