Brandenburg V Ohio The Brandenburg Test

Brandenburg v. Ohio

U.S. Supreme Court
June 9, 1969
U.S. SUPREME COURT: Clarence BRANDENBURG, Appellant, v. State of OHIO. No. 492. U.S. 444 (1969).

Facts of the Case:

Brandenburg, a leader in the Ku Klux Klan, made a speech at a Klan rally and was later convicted under an Ohio criminal syndicalism law. The law made illegal advocating "crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform," as well as assembling "with any society, group, or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism."

Question:

Did Ohio's criminal syndicalism law, prohibiting public speech that advocates various illegal activities, violate Brandenburg's right to free speech as protected by the First and Fourteenth Amendments?
Conclusion:

The Court's Per Curiam opinion held that the Ohio law violated Brandenburg's right to free speech. The Court used a two-pronged test to evaluate speech acts: (1) speech can be prohibited if it is "directed at inciting or producing imminent lawless action" and (2) it is "likely to incite or produce such action." The criminal syndicalism act made illegal the advocacy and teaching of doctrines while ignoring whether or not that advocacy and teaching would actually incite imminent lawless action. The failure to make this distinction rendered the law overly broad and in violation of the Constitution.

Decisions

Decision: 8 votes for Brandenburg, 0 vote(s) against
Legal provision: Amendment 1: Speech, Press, and Assembly

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