Brandenburg v.

Ohio:

Brandenburg, a leader of the KKK, was convicted under Ohio’s Criminal Syndicalism statute, which
prohibits advocating violence for political reform. The Ohio Supreme Court affirmed his conviction.

The U.S. Supreme Court reversed. It found that the Ohio statute punishes mere advocacy and is,
therefore, in violation of the First Amendment.

The Court held that the Government cannot punish speech unless it is intended to incite “imminent
lawless action.”

Brandenburg v. Ohio Case Brief

Statement of the Facts:

Brandenburg, a Klu Klux Klan (KKK) leader, invited reporters to a KKK rally. The reporters recorded him
making racist statements and advocating for vengeful action against the government. The State of Ohio
convicted Brandenburg under its Criminal Syndicalism statute, which essentially prohibits advocating
violence for political reform.

Procedural History:

Brandenburg appealed his conviction, citing violations of the First and Fourteenth Amendments. Ohio’s
intermediate appellate court and Supreme Court affirmed without opinion. The U.S. Supreme Court
agreed to hear the case.

Issue and Holding:

Did Ohio’s Criminal Syndicalism statute violate Brandenburg’s right to freedom of speech under the First
and Fourteenth Amendments? Yes.

Judgment:
The Court reversed the Ohio Supreme Court’s decision.

Rule of Law or Legal Principle Applied:

The Government cannot punish speech that advocates violence or violation of the law unless that
speech (i) is “directed at inciting or producing imminent lawless action,” and (ii) is “likely to produce
such action.”

Reasoning:

There is a marked difference between mere advocacy (which is protected speech) and inciting people
immediately to commit violence (which is not protected speech). Ohio’s Criminal Syndicalism statute
does make that distinction. Indeed, Ohio’s statute criminalizes mere advocacy as well as incitement
and, therefore, violates the First and Fourteenth Amendments.

Concurring Opinion (Black):

Justice Black agrees with Justice Douglas’ concurrence that the “clear and present danger” test has no
place in the Court’s interpretation of the First Amendment.

Concurring Opinion (Douglas):

Justice Douglas notes that Justice Oliver Wendell Holmes’s “clear and present danger” test has rightfully
fallen out of favor because it prohibited speech that should have been protected. Justice Douglas
concludes that the classic example of ‘shouting fire in a crowded theater’ is the only instance where
speech may be prohibited. That is because it is “speech brigaded with action.”

Significance:
Brandenburg v. Ohio is a landmark First Amendment decision because it establishes the “imminent
lawless action” test, also known as the Brandenburg test. It remains the standard for courts analyzing
government attempts to punish inflammatory speech.