Caseflicks

Supreme Court of the United States • 1969

Brandenburg v. Ohio

395 U.S. 444 | 89 S. Ct. 1827 | 23 L. Ed. 2d 430 | 1969 U.S. LEXIS 1367 | 48 Ohio Op. 2d 320

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Takeaway

In short, this case established that advocacy is protected unless it is intended and likely to produce imminent lawless action, and it overruled precedent allowing punishment of abstract advocacy of violence.

Background

Clarence Brandenburg, a Ku Klux Klan leader, invited a television reporter and cameraman to a Klan rally on an Ohio farm. The resulting films showed hooded participants, some armed, burning a cross. In a separate filmed speech, Brandenburg used racist language and said that, if the President, Congress, and Supreme Court continued to “suppress the white, Caucasian race,” there might have to be “revengeance.” He also announced plans to march on Congress and then to Florida and Mississippi.

Ohio prosecuted Brandenburg under its Criminal Syndicalism Act. The statute criminalized advocacy of the duty, necessity, or propriety of crime, sabotage, violence, or unlawful terrorism as a means of political or industrial reform, as well as voluntarily assembling with a group formed to teach or advocate those doctrines. Brandenburg was fined $1,000 and sentenced to one to ten years in prison.

The intermediate Ohio appellate court affirmed without an opinion. The Supreme Court of Ohio dismissed Brandenburg’s appeal on its own motion, stating only that no substantial constitutional question existed. The United States Supreme Court noted probable jurisdiction and reversed.

Issues

Issue #1

Whether the First and Fourteenth Amendments permit Ohio to punish advocacy of violence or lawbreaking, and association with a group that advocates such conduct, without requiring incitement of imminent lawless action.

Holding

No. A State may punish advocacy of force or lawbreaking only when the advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce that action.

Reasoning

The Court drew a constitutional line between abstract advocacy and incitement. Teaching that violence may be morally proper or necessary is not the same as preparing people for violent action and urging them to act. The First Amendment protects even advocacy of unlawful political change unless the speech crosses into the narrowly defined category of imminent incitement.

Ohio’s statute swept far beyond that narrow category. By its terms, it punished anyone who merely advocated, taught, justified, published, or assembled to discuss the propriety of violence as a means of political or industrial reform. It did not require that the speaker intend to produce imminent unlawful conduct, or that the speech be likely to produce it.

The defect was not cured in Brandenburg’s prosecution. Neither the indictment nor the trial judge’s jury instructions limited the charge to intentional, likely incitement of imminent lawless action. The State therefore convicted Brandenburg under a law that punished protected abstract advocacy and protected association as well as unprotected incitement.

Issue #2

Whether Whitney v. California could continue to support criminal-syndicalism laws that prohibit advocacy of violent political change without regard to imminence or likelihood of unlawful action.

Holding

No. The Court overruled Whitney v. California.

Reasoning

Whitney had approved a similar criminal-syndicalism statute on the theory that advocacy of violent political and economic change could itself be treated as sufficiently dangerous to the State. Later First Amendment decisions had repudiated that approach by insisting on a meaningful distinction between abstract doctrine and incitement to unlawful action.

Because Ohio’s law embraced the same impermissibly broad premise as Whitney, sustaining Brandenburg’s conviction would preserve a rule inconsistent with modern First Amendment protection. The Court therefore expressly rejected Whitney’s contrary teaching.

Concurrences

Justice Black

Reasoning

Justice Black joined the Court’s judgment and opinion, but emphasized his agreement with Justice Douglas that the “clear and present danger” doctrine has no proper role in interpreting the First Amendment. He understood the Court’s reference to Dennis as a citation to precedent, not as an endorsement of the clear-and-present-danger analysis used there.

Justice Douglas

Reasoning

Justice Douglas joined the Court but argued for a still more speech-protective constitutional approach. In his view, the “clear and present danger” formula had developed in World War I cases and had proved too manipulable: judges could characterize unpopular dissent as dangerous and use the test to suppress political opposition.

He particularly criticized Dennis v. United States, where the Court allowed prosecution of Communist Party leaders by balancing the gravity of a feared evil against its probability. Douglas believed that this reformulation distorted the clear-and-present-danger test and helped turn the prosecution of Marxist teachers into a political trial shaped by Cold War fears.

For Douglas, the central constitutional boundary is between ideas and overt acts, not between abstract advocacy and advocacy believed to be dangerous. Government may punish actual unlawful conduct, including the concrete acts caused when speech is inseparably connected with action, but it generally may not criminalize expression because of the ideas, beliefs, or political change it urges.

Douglas also maintained that government has no authority to probe or penalize the depth of a person’s political beliefs. Distinctions between active and inactive membership in a disfavored organization, he argued, invite government intrusion into conscience and belief—the very areas the First Amendment should protect most strongly.