Facts of the Case

Clarence Brandenburg, a leader of the Ku Klux Klan in Ohio, was convicted under the state’s criminal syndicalism law after giving a speech at a Klan rally. In his speech, Brandenburg made derogatory statements about minorities and suggested that “revengeance” might be necessary if the government continued to suppress the white race. He was charged and convicted for advocating violence and unlawful methods of terrorism to achieve political reform. Brandenburg argued that his conviction violated his First and Fourteenth Amendment rights to free speech.

Constitutional Question

Does Ohio’s criminal syndicalism law, which prohibits public speech that advocates for illegal activities, violate the First and Fourteenth Amendments’ guarantees of free speech and free assembly?

Arguments

For Brandenburg:

• Brandenburg’s speech, though offensive, was a form of political expression protected by the First Amendment.
• The law was overly broad and could be used to suppress speech that merely advocates abstract ideas, rather than inciting imminent lawless action.
• The conviction violated Brandenburg’s right to free speech and assembly, as his words did not present a clear and present danger.

For the State of Ohio:

• The state has a legitimate interest in preventing the advocacy of violence and illegal activities, particularly when it could incite public disorder.
• Brandenburg’s speech, which advocated for unlawful acts, falls outside the protection of the First Amendment.
• The law is necessary to maintain public order and prevent the spread of dangerous ideas that could lead to violence.

The Decision

The Supreme Court, in a per curiam decision, ruled in favor of Brandenburg, overturning his conviction. The Court established a new standard for evaluating speech that advocates illegal activities, known as the “Brandenburg test.” This test has two prongs:

1. Incitement to Imminent Lawless Action: The speech must be “directed to inciting or producing imminent lawless action.”
2. Likelihood of Success: The speech must be “likely to incite or produce such action.”

Under this test, the Court held that the Ohio law was unconstitutional because it broadly prohibited speech that did not necessarily lead to imminent lawless action. Brandenburg’s speech, although reprehensible, did not meet the standard for incitement because it did not explicitly call for immediate illegal activity.

Significance

Brandenburg v. Ohio is a landmark case that significantly strengthened First Amendment protections for free speech, particularly political speech that advocates for controversial or unpopular ideas. The decision established the “Brandenburg test,” which remains the standard for determining when speech can be lawfully restricted. The ruling emphasized the importance of protecting free expression, even when the speech in question is offensive or advocates for change through unlawful means, as long as it does not incite immediate illegal action. This case has had a profound impact on the legal interpretation of free speech and the limits of government authority in regulating expression.