Brandenburg v. Ohio
Overview
 
Brandenburg v. Ohio, , was a landmark United States Supreme Court
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...

 case based on the First Amendment
First Amendment to the United States Constitution
The First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering...

 to the U.S. Constitution
United States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...

. It held that government cannot punish inflammatory speech unless it is directed to inciting and likely to incite imminent lawless action
Imminent lawless action
"Imminent lawless action" is a standard currently used, and that was established by the United States Supreme Court in Brandenburg v. Ohio , for defining the limits of freedom of speech. Brandenburg clarified what constituted a "clear and present danger", the standard established by Schenck v....

. In particular, it overruled Ohio's criminal syndicalism statute, because that statute broadly prohibited the mere advocacy
Advocacy
Advocacy is a political process by an individual or a large group which normally aims to influence public-policy and resource allocation decisions within political, economic, and social systems and institutions; it may be motivated from moral, ethical or faith principles or simply to protect an...

 of violence. In the process, four prior Supreme Court decisions were invalidated:
  • Schenck v. United States
    Schenck v. United States
    Schenck v. United States, , was a United States Supreme Court decision that upheld the Espionage Act of 1917 and concluded that a defendant did not have a First Amendment right to express freedom of speech against the draft during World War I. Ultimately, the case established the "clear and present...

    ,
  • Abrams v. United States
    Abrams v. United States
    Abrams v. United States, 250 U.S. 616 , was a 7-2 decision of the United States Supreme Court involving the 1918 Amendment to the Espionage Act of 1917, which made it a criminal offense to urge curtailment of production of the materials necessary to the war against Germany with intent to hinder the...

    ,
  • Whitney v. California
    Whitney v. California
    Whitney v. California, 274 U.S. 357 , was a United States Supreme Court decision upholding the conviction of an individual who had engaged in speech that raised a threat to society.-Facts:...

    ,
  • Dennis v. United States
    Dennis v. United States
    Dennis v. United States, , was a United States Supreme Court case involving Eugene Dennis, general secretary of the Communist Party USA, which found that Dennis did not have a right under the First Amendment to the Constitution of the United States to exercise free speech, publication and assembly,...

    ,

Clarence Brandenburg, a Ku Klux Klan
Ku Klux Klan
Ku Klux Klan, often abbreviated KKK and informally known as the Klan, is the name of three distinct past and present far-right organizations in the United States, which have advocated extremist reactionary currents such as white supremacy, white nationalism, and anti-immigration, historically...

 leader in rural Ohio
Ohio
Ohio is a Midwestern state in the United States. The 34th largest state by area in the U.S.,it is the 7th‑most populous with over 11.5 million residents, containing several major American cities and seven metropolitan areas with populations of 500,000 or more.The state's capital is Columbus...

, contacted a reporter at a Cincinnati television station and invited him to come and cover a KKK rally in Hamilton County
Hamilton County, Ohio
As of 2000, there were 845,303 people, 346,790 households, and 212,582 families residing in the county. The population density was 2,075 people per square mile . There were 373,393 housing units at an average density of 917 per square mile...

 in the summer of 1964.
Encyclopedia
Brandenburg v. Ohio, , was a landmark United States Supreme Court
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...

 case based on the First Amendment
First Amendment to the United States Constitution
The First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering...

 to the U.S. Constitution
United States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...

. It held that government cannot punish inflammatory speech unless it is directed to inciting and likely to incite imminent lawless action
Imminent lawless action
"Imminent lawless action" is a standard currently used, and that was established by the United States Supreme Court in Brandenburg v. Ohio , for defining the limits of freedom of speech. Brandenburg clarified what constituted a "clear and present danger", the standard established by Schenck v....

. In particular, it overruled Ohio's criminal syndicalism statute, because that statute broadly prohibited the mere advocacy
Advocacy
Advocacy is a political process by an individual or a large group which normally aims to influence public-policy and resource allocation decisions within political, economic, and social systems and institutions; it may be motivated from moral, ethical or faith principles or simply to protect an...

 of violence. In the process, four prior Supreme Court decisions were invalidated:
  • Schenck v. United States
    Schenck v. United States
    Schenck v. United States, , was a United States Supreme Court decision that upheld the Espionage Act of 1917 and concluded that a defendant did not have a First Amendment right to express freedom of speech against the draft during World War I. Ultimately, the case established the "clear and present...

    ,
  • Abrams v. United States
    Abrams v. United States
    Abrams v. United States, 250 U.S. 616 , was a 7-2 decision of the United States Supreme Court involving the 1918 Amendment to the Espionage Act of 1917, which made it a criminal offense to urge curtailment of production of the materials necessary to the war against Germany with intent to hinder the...

    ,
  • Whitney v. California
    Whitney v. California
    Whitney v. California, 274 U.S. 357 , was a United States Supreme Court decision upholding the conviction of an individual who had engaged in speech that raised a threat to society.-Facts:...

    ,
  • Dennis v. United States
    Dennis v. United States
    Dennis v. United States, , was a United States Supreme Court case involving Eugene Dennis, general secretary of the Communist Party USA, which found that Dennis did not have a right under the First Amendment to the Constitution of the United States to exercise free speech, publication and assembly,...

    ,

Background

Clarence Brandenburg, a Ku Klux Klan
Ku Klux Klan
Ku Klux Klan, often abbreviated KKK and informally known as the Klan, is the name of three distinct past and present far-right organizations in the United States, which have advocated extremist reactionary currents such as white supremacy, white nationalism, and anti-immigration, historically...

 leader in rural Ohio
Ohio
Ohio is a Midwestern state in the United States. The 34th largest state by area in the U.S.,it is the 7th‑most populous with over 11.5 million residents, containing several major American cities and seven metropolitan areas with populations of 500,000 or more.The state's capital is Columbus...

, contacted a reporter at a Cincinnati television station and invited him to come and cover a KKK rally in Hamilton County
Hamilton County, Ohio
As of 2000, there were 845,303 people, 346,790 households, and 212,582 families residing in the county. The population density was 2,075 people per square mile . There were 373,393 housing units at an average density of 917 per square mile...

 in the summer of 1964. 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" [sic
Sic
Sic—generally inside square brackets, [sic], and occasionally parentheses, —when added just after a quote or reprinted text, indicates the passage appears exactly as in the original source...

] against "nigger
Nigger
Nigger is a noun in the English language, most notable for its usage in a pejorative context to refer to black people , and also as an informal slang term, among other contexts. It is a common ethnic slur...

s," "Jews," and those who supported them. One of the speeches also claimed that "our President
President of the United States
The President of the United States of America is the head of state and head of government of the United States. The president leads the executive branch of the federal government and is the commander-in-chief of the United States Armed Forces....

, our Congress
United States Congress
The United States Congress is the bicameral legislature of the federal government of the United States, consisting of the Senate and the House of Representatives. The Congress meets in the United States Capitol in Washington, D.C....

, our Supreme Court
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...

, continues to suppress the white, Caucasian race," and announced plans for a march on Washington to take place on the Fourth of July
Independence Day (United States)
Independence Day, commonly known as the Fourth of July, is a federal holiday in the United States commemorating the adoption of the Declaration of Independence on July 4, 1776, declaring independence from the Kingdom of Great Britain...

. 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
First Red Scare
In American history, the First Red Scare of 1919–1920 was marked by a widespread fear of Bolshevism and anarchism. Concerns over the effects of radical political agitation in American society and alleged spread in the American labor movement fueled the paranoia that defined the period.The First Red...

 - proscribed "advocat[ing] .. . the duty, necessity, or propriety of crime, sabotage
Sabotage
Sabotage is a deliberate action aimed at weakening another entity through subversion, obstruction, disruption, or destruction. In a workplace setting, sabotage is the conscious withdrawal of efficiency generally directed at causing some change in workplace conditions. One who engages in sabotage is...

, violence, or unlawful methods of terrorism
Terrorism
Terrorism is the systematic use of terror, especially as a means of coercion. In the international community, however, terrorism has no universally agreed, legally binding, criminal law definition...

 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
Ohio Courts of Common Pleas
The Ohio Courts of Common Pleas are the trial courts of the state court system of Ohio.The courts of common pleas are the trial courts of general jurisdiction in the state. They are the only trial courts created by the Ohio Constitution . The duties of the courts are outlined in Article IV, Section...

 of Hamilton County
Hamilton County, Ohio
As of 2000, there were 845,303 people, 346,790 households, and 212,582 families residing in the county. The population density was 2,075 people per square mile . There were 373,393 housing units at an average density of 917 per square mile...

, 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
First Amendment to the United States Constitution
The First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering...

 and Fourteenth Amendment
Fourteenth Amendment to the United States Constitution
The Fourteenth Amendment to the United States Constitution was adopted on July 9, 1868, as one of the Reconstruction Amendments.Its Citizenship Clause provides a broad definition of citizenship that overruled the Dred Scott v...

 right to freedom of speech
Freedom of speech
Freedom of speech is the freedom to speak freely without censorship. The term freedom of expression is sometimes used synonymously, but includes any act of seeking, receiving and imparting information or ideas, regardless of the medium used...

. The Supreme Court of Ohio
Supreme Court of Ohio
The Supreme Court of Ohio is the highest court in the U.S. state of Ohio, with final authority over interpretations of Ohio law and the Ohio Constitution. The court has seven members, a chief justice and six associate justices, each serving six-year terms...

 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
Yates v. United States
Yates v. United States, 354 U.S. 298 , was a case decided by the Supreme Court of the United States involving free speech and congressional power...

, 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
Dennis v. United States
Dennis v. United States, , was a United States Supreme Court case involving Eugene Dennis, general secretary of the Communist Party USA, which found that Dennis did not have a right under the First Amendment to the Constitution of the United States to exercise free speech, publication and assembly,...

, 341 U.S. 494 (1951), all Yates purported to do was construe a federal statute, the Smith Act
Smith Act
The Alien Registration Act or Smith Act of 1940 is a United States federal statute that set criminal penalties for advocating the overthrow of the U.S...

. 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.

The 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). The earlier draft had originally been prepared by Justice Abe Fortas
Abe Fortas
Abraham Fortas was a U.S. Supreme Court associate justice from 1965 to 1969. Originally from Tennessee, Fortas became a law professor at Yale, and subsequently advised the Securities and Exchange Commission. He then worked at the Interior Department under Franklin D...

 before he was forced to resign in the midst of an ethics scandal, and would have included a modified version of the clear and present danger
Clear and present danger
Clear and present danger was a term used by Justice Oliver Wendell Holmes, Jr. in the unanimous opinion for the case Schenck v. United States, concerning the ability of the government to regulate speech against the draft during World War I:...

 test. In finalizing the draft, Justice Brennan eliminated all references to it, substituting instead the "imminent lawless action" language. Justices Black and Douglas concurred separately.

Per curiam opinion

The per curiam majority opinion overturned the Ohio Criminal Syndicalism statute, overruled Whitney v. California
Whitney v. California
Whitney v. California, 274 U.S. 357 , was a United States Supreme Court decision upholding the conviction of an individual who had engaged in speech that raised a threat to society.-Facts:...

, 274 U.S. 357 (1927), and articulated a new test — the "imminent lawless action" test — for judging what was then referred to as "seditious speech" under the First Amendment:
In Schenck v. United States
Schenck v. United States
Schenck v. United States, , was a United States Supreme Court decision that upheld the Espionage Act of 1917 and concluded that a defendant did not have a First Amendment right to express freedom of speech against the draft during World War I. Ultimately, the case established the "clear and present...

, 249 U.S. 47 (1919), the Court had adopted a "clear and present danger
Clear and present danger
Clear and present danger was a term used by Justice Oliver Wendell Holmes, Jr. in the unanimous opinion for the case Schenck v. United States, concerning the ability of the government to regulate speech against the draft during World War I:...

" test that Whitney v. California 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
Dennis v. United States
Dennis v. United States, , was a United States Supreme Court case involving Eugene Dennis, general secretary of the Communist Party USA, which found that Dennis did not have a right under the First Amendment to the Constitution of the United States to exercise free speech, publication and assembly,...

, a case dealing with prosecution of alleged Communists under the Smith Act
Smith Act
The Alien Registration Act or Smith Act of 1940 is a United States federal statute that set criminal penalties for advocating the overthrow of the U.S...

 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.

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 completely did away with Denniss 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
Stare decisis
Stare decisis is a legal principle by which judges are obliged to respect the precedents established by prior decisions...

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.

The Brandenburg test (AKA the imminent lawless action test)

The three distinct elements of this test (intent, imminence, and likelihood) have distinct precedential lineages.

Judge Learned Hand
Learned Hand
Billings Learned Hand was a United States judge and judicial philosopher. He served on the United States District Court for the Southern District of New York and later the United States Court of Appeals for the Second Circuit...

 was possibly the first judge to advocate the intent standard, in
Masses Publishing Co. v. Patten
Masses Publishing Co. v. Patten
Masses Publishing Co. v. Patten, 244 F. 535 , was a decision by the United States District Court for the Southern District of New York, that addressed advocacy of illegal activity under the First Amendment.-Background:...

, 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.

The imminence element was a departure from earlier rulings..
Brandenburg did not explicitly overrule the bad tendency test, but it appears that after "Brandenburg", the test is de facto overruled. The "Brandenburg" test effectively made the time element of the clear and present danger test more defined and more rigorous.

Concurrences

Justice Hugo Black
Hugo Black
Hugo Lafayette Black was an American politician and jurist. A member of the Democratic Party, Black represented Alabama in the United States Senate from 1927 to 1937, and served as an Associate Justice of the Supreme Court of the United States from 1937 to 1971. Black was nominated to the Supreme...

, renowned civil libertarian and First Amendment absolutist, filed a short concurrence indicating his agreement with Justice William O. Douglas
William O. Douglas
William Orville Douglas was an Associate Justice of the United States Supreme Court. With a term lasting 36 years and 209 days, he is the longest-serving justice in the history of the Supreme Court...

's longer opinion and pointing out that the per curiams reliance on Dennis was more symbolic than actual.

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 War
Vietnam War
The Vietnam War was a Cold War-era military conflict that occurred in Vietnam, Laos, and Cambodia from 1 November 1955 to the fall of Saigon on 30 April 1975. This war followed the First Indochina War and was fought between North Vietnam, supported by its communist allies, and the government of...

), 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
United States v. O'Brien
United States v. O'Brien, 391 U.S. 367 , was a decision by the Supreme Court of the United States, which ruled that a criminal prohibition against burning a draft card did not violate the First Amendment's guarantee of free speech...

, 391 U.S. 367 (1968), which had allowed for the prosecution of a man for burning his draft card
Draft-card burning
Draft-card burning was a symbol of protest performed by thousands of young American men as part of the opposition to the involvement of the United States in the Vietnam War. Beginning in May 1964, some activists burned their draft cards at anti-war rallies and demonstrations. By May 1965 it was...

. 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.

Finally, Douglas dealt with the classic example of a man "falsely shouting fire in a theater and causing a panic.
Shouting fire in a crowded theater
"Shouting fire in a crowded theatre" is a popular metaphor and frequent paraphrasing of Oliver Wendell Holmes, Jr.'s opinion in the United States Supreme Court case Schenck v. United States in 1919...

" 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
Marketplace of ideas
The "marketplace of ideas" is a rationale for freedom of expression based on an analogy to the economic concept of a free market. The "marketplace of ideas" belief holds that the truth or the best policy arises out of the competition of widely various ideas in free, transparent public discourse, an...

 to reach a favorable result, leaving the law in a state along the lines of that which Justices Louis Brandeis
Louis Brandeis
Louis Dembitz Brandeis ; November 13, 1856 – October 5, 1941) was an Associate Justice on the Supreme Court of the United States from 1916 to 1939.He was born in Louisville, Kentucky, to Jewish immigrant parents who raised him in a secular mode...

, and, post-Schenck, Oliver Wendell Holmes
Oliver Wendell Holmes, Jr.
Oliver Wendell Holmes, Jr. was an American jurist who served as an Associate Justice of the Supreme Court of the United States from 1902 to 1932...

 advocated in several dissents and concurrences during the late 1910s and early 1920s. As of 2011, 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.

See also

  • List of United States Supreme Court cases, volume 395
  • Schenck v. United States
    Schenck v. United States
    Schenck v. United States, , was a United States Supreme Court decision that upheld the Espionage Act of 1917 and concluded that a defendant did not have a First Amendment right to express freedom of speech against the draft during World War I. Ultimately, the case established the "clear and present...

    ,
  • Abrams v. United States
    Abrams v. United States
    Abrams v. United States, 250 U.S. 616 , was a 7-2 decision of the United States Supreme Court involving the 1918 Amendment to the Espionage Act of 1917, which made it a criminal offense to urge curtailment of production of the materials necessary to the war against Germany with intent to hinder the...

    ,
  • Whitney v. California
    Whitney v. California
    Whitney v. California, 274 U.S. 357 , was a United States Supreme Court decision upholding the conviction of an individual who had engaged in speech that raised a threat to society.-Facts:...

    ,
  • Dennis v. United States
    Dennis v. United States
    Dennis v. United States, , was a United States Supreme Court case involving Eugene Dennis, general secretary of the Communist Party USA, which found that Dennis did not have a right under the First Amendment to the Constitution of the United States to exercise free speech, publication and assembly,...

    ,
  • Chaplinsky v. New Hampshire
    Chaplinsky v. New Hampshire
    Chaplinsky v. State of New Hampshire, was a case decided by the Supreme Court of the United States, in which the Court articulated the fighting words doctrine, a limitation of the First Amendment's guarantee of freedom of speech.-Facts of the case:...

    ,
  • Terminiello v. Chicago
    Terminiello v. Chicago
    Terminiello v. City of Chicago, 337 U.S. 1 , was a case in which the Supreme Court of the United States held that a "breach of peace" ordinance of the City of Chicago which banned speech which "stirs the public to anger, invites dispute, brings about a condition of unrest, or creates a disturbance"...

    ,

External links

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