BRANDENBURG v. OHIO

Legal Principle at Issue

Whether an Ohio law prohibiting speech that advocates for illegal activities violated Brandenburg's First Amendment rights.

Action

Reversed. Petitioning party received a favorable disposition.

Facts/Syllabus

The Ohio Criminal Syndicalism Statute was enacted in 1919. In 1927, the Supreme Court sustained in Whitney v. California the constitutionality of California's Criminal Syndicalism Act, the text of which is quite similar to that of Ohio. The Court upheld the statute on the ground that, without more, "advocating" violent means to effect political and economic change involves such danger to the security of the state that the state may outlaw it. 

Appellant Clarence Brandenburg was convicted of violating a criminal law that prohibited speech that advocates crime, sabotage, violence, and other similar acts after he spoke at a KKK rally. The record shows that a man, identified at trial as the appellant, telephoned a reporter from a Cincinnati television station and invited him to come to a Ku Klux Klan "rally" to be held at a farm in Hamilton County. With the cooperation of the organizers, the reporter and a cameraman attended the meeting and filmed the events. Portions of the films were later broadcast on the local station and on a national network. 

The state's case rested on the films and on testimony identifying Brandenburg as the person who communicated with the reporter and spoke at the rally. The state also introduced into evidence several articles appearing in the film, including a pistol, a rifle, a shotgun, ammunition, a Bible, and a red hood worn by the speaker in the films. They were gathered around a large wooden cross, which they burned. No one was present other than the participants and the newsmen who made the film. Most of the words uttered during the scene were incomprehensible when the film was projected, but scattered phrases could be understood that were derogatory of Negroes and, in one instance, of Jews. Another scene on the same film showed the appellant, in Klan regalia, making a speech.

Brandenburg challenged the constitutionality of the criminal syndicalism statute under the First and Fourteenth Amendments, but the intermediate appellate court of Ohio affirmed his conviction without opinion. The Supreme Court of Ohio dismissed his appeal "for the reason that no substantial constitutional question exists herein." It did not file an opinion or explain its conclusions. Appeal was taken to the Supreme Court, which noted probable jurisdiction. 

Importance of Case

Speech is not constitutionally protected if 1) it is directed at producing imminent lawless action and 2) it is likely to produce such action.