Primary Source: Brandenburg v. Ohio (1969)

In Brandenburg v. Ohio, Clarence Brandenburg—a Ku Klux Klan leader—spoke at a local Klan rally. As he addressed a crowd of hooded figures, he declared, “This is an organizers’ meeting. We have had quite a few members here today . . . . We’re not a revengent organization, but if our President, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, it’s possible that there might have to be some revengeance taken.” For this speech, Brandenburg was convicted under the Ohio Criminal Syndicalism statute, which made it illegal to advocate “crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform.” He was fined $1,000 and sentenced for up to ten years in prison. In a per curiam opinion (meaning one written “by the court as a whole”), the Supreme Court reversed Brandenburg’s conviction and struck down the Ohio law. Importantly, the Court also established one of the most speech-protective legal tests in the world—concluding that, generally speaking, the government may not prohibit speech unless it is directed to and likely to cause immediate lawless action. Brandenburg remains good law today.

The Ohio Criminal Syndicalism Statute was enacted in 1919. From 1917 to 1920, identical or quite similar laws were adopted by 20 States and two territories. . . . In 1927, this Court sustained the constitutionality of California’s Criminal Syndicalism Act, . . . the text of which is quite similar to that of the laws 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. . . . But Whitney has been thoroughly discredited by later decisions. . . . These later decisions have fashioned the principle that 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 such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. As we said [in a previous case] . . . , “the mere abstract teaching . . . of the moral propriety or even moral necessity for a resort to force and violence is not the same as preparing a group for violent action and steeling it to such action.” . . . A statute which fails to draw this distinction impermissibly intrudes upon the freedoms guaranteed by the First and Fourteenth Amendments. It sweeps within its condemnation speech which our Constitution has immunized from governmental control. . . .

Measured by this test, Ohio’s Criminal Syndicalism Act cannot be sustained. The Act punishes persons who “advocate or teach the duty, necessity, or propriety” of violence “as a means of accomplishing industrial or political reform”; or who publish or circulate or display any book or paper containing such advocacy; or who “justify” the commission of violent acts “with intent to exemplify, spread or advocate the propriety of the doctrines of criminal syndicalism”; or who “voluntarily assemble” with a group formed “to teach or advocate the doctrines of criminal syndicalism.” Neither the indictment nor the trial judge’s instructions to the jury in any way refined the statute’s bald definition of the crime in terms of mere advocacy not distinguished from incitement to imminent lawless action.

Accordingly, we are here confronted with a statute which, by its own words and as applied, purports to punish mere advocacy and to forbid, on pain of criminal punishment, assembly with others merely to advocate the described type of action. Such a statute falls within the condemnation of the First and Fourteenth Amendments. The contrary teaching of Whitney v. California . . . cannot be supported, and that decision is therefore overruled.