Brandenburg Incitement Test

Even though the U.S. Constitution provides strong protections for speech, in a number of early decisions, the U.S. Supreme Court gave government broad authority to prosecute those who engage in speech advocating violence or illegal activity. For example, in Schenck v. United States (1919), the defendants circulated a petition urging resistance to the draft during World War I. Even though the advocacy did not come close to causing the violence or illegal activity to actually happen, defendants were nevertheless convicted.

Brandenburg v. Ohio (1969) significantly altered the Court’s approach to ‘‘illegal advocacy.’’ In Brandenburg, members of the Klu Klux Klan (KKK) held a rally at which they made derogatory comments about African Americans and Jews, and stated that there might be a need for ‘‘revengenance’’ if Congress and other public officials failed to respond to KKK concerns. The Court overturned the defendant’s conviction for ‘‘criminal syndicalism’’ (defined roughly as speech advocating the use of force or law violation), finding that the state did not have the power to prohibit the discussion of abstract principles. A criminal conviction could only be sustained if it could be shown that the advocacy was directed to inciting or producing imminent lawless conduct and is likely to produce such conduct. In the Brandenburg case, even though the KKK members spoke stridently, their speech was not close to causing actual violence. As a result, their convictions were reversed.

RUSSELL L. WEAVER

References and Further Reading

  • Weaver, Russell L., and Donald E. Lively. Understanding the First Amendment. Newark, NJ: LexisNexis, 2003. 
  • Weaver, Russell L., and Arthur E. Hellman. The First Amendment: Cases, Materials & Problems. Newark, N.J.: LexisNexis, 2002.

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