Brandenburg v. Ohio, 395 U.S. 444 (1969)

This case originated in the state of Ohio where Clarence Brandenburg, a Ku Klux Klan leader, was convicted, fined, and sentenced to jail for having made a speech in which he suggested that if the branches of the federal government did not stop suppressing the Caucasian race, violence might be the only answer. He was charged under the Ohio criminal syndicalism statute of 1919, which punished advocacy of violence against the government.

Brandenburg appealed his conviction on the grounds that the provisions of the Ohio law were so broad that they violated freedom of speech guarantees under the First and Fourteenth Amendments. The U.S. Supreme Court, in a per curiam opinion (with concurrences by Justices Hugo L. Black and William O. Douglas) overturned Brandenburg’s conviction, and in doing so significantly broadened the reach of free speech protection. The decision overturned the earlier decision in Whitney v. California (1927) and rejected the clear and present danger test once and for all. In a striking defense of the importance of political speech, the Court emphasized the ‘‘principle that the constitutional guarantees of free speech and free press do not permit a state to proscribe or forbid advocacy of the use of force or law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.’’ The decision had the effect of invalidating state and federal laws that restricted the activities of political groups, including the Smith Act of 1940.

REBECCA S. SHOEMAKER

References and Further Reading

  • Linde, Hans A., ‘Clear and Present Danger’ Reexamined: Dissonance in the Brandenburg Concerto, Stanford Law Review 22 (June 1970): 6:1163–86. 
  • BeVier, Lillian, The First Amendment and Political Speech: An Inquiry into the Substance and Limits of Principle, Stanford Law Review 30 (January 1978): 2:299–358. 

Cases and Statutes Cited

  • Brandenburg v. Ohio 395 U.S. 444 (1969) 
  • Whitney v. California 274 U.S. 357 (1927) 

See also Clear and Present Danger Test; Douglas, William Orville; Smith Act; Whitney v. California, 274 U.S. 357 (1927)

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