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Brandenburg v. Ohio

Supreme Court of the United States · 1969 · Constitutional Law

First Amendmentincitementimminent lawless actionadvocacyFirst AmendmentFourteenth Amendmentincitementadvocacy

Facts

The appellant, identified as a leader of a Ku Klux Klan group, invited a television reporter to attend and film a Klan rally held at a farm in Hamilton County, Ohio. The State's case relied on the films and testimony identifying appellant as the speaker, and it also introduced weapons and other items shown in the film. In the films, hooded figures gathered around a burning cross, and appellant, dressed in Klan regalia, gave speeches containing racist statements, references to a possible "revengeance," and plans to march on Congress and into Florida and Mississippi. He was convicted under an Ohio statute that punished advocacy of crime, sabotage, violence, or unlawful methods of terrorism as a means of political or industrial reform, and also punished voluntary assembly with a group formed to teach or advocate criminal syndicalism.

Issue

Whether Ohio's Criminal Syndicalism Act, which punishes mere advocacy of violence or unlawful methods of political reform and assembly with groups formed to advocate such doctrines, violates the First and Fourteenth Amendments. Also, whether appellant's conviction under that statute can stand when the statute, indictment, and jury instructions did not distinguish mere advocacy from incitement to imminent lawless action.

Rule

The constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where that advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. Mere abstract teaching of the moral propriety or necessity of force or violence is not the same as preparing a group for violent action and steeling it to such action.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

At a political meeting in Milwaukee, Dana Mercer tells a crowd of 40 supporters that "someday, if elections keep failing us, people may need to use force to rebuild the state." She gives no date, no target, and no instructions, and the audience disperses quietly after the speech.

If Wisconsin prosecutes Dana under a statute that makes it a felony to advocate the necessity or propriety of violence as a means of political reform, which argument is strongest under the First and Fourteenth Amendments?

Explanation. The controlling rule is that a State may not forbid advocacy of force or law violation except where the advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. Dana's statement speaks in general, future-oriented terms and does not call for immediate unlawful conduct. That is protected abstract advocacy rather than punishable incitement.