Science Fair Project Encyclopedia
Brandenburg v. Ohio
|Brandenburg v. Ohio|
Supreme Court of the United States
| Argued Feb. 27, 1969|
Decided June 9, 1969
|Ohio's criminal syndicalism statute violated the First Amendment, as applied to the state through the Fourteenth, because it broadly prohibited the mere advocacy of violence rather than the constitutionally unprotected incitement to imminent lawless action.|
|U.S. Const. amend. I, XIV; Ohio Rev. Code § 2923.13|
Clarence Brandenburg was a Ku Klux Klan leader convicted of advocating violence under Ohio's Criminal Syndicalism statute. In a per curiam opinion thought to have been written by Justice Brennan, the Court overturned his conviction on the grounds that the statute violated the First and Fourteenth Amendments.
Brandenburg's significance lies in its explicit rejection of an earlier Supreme Court case, Whitney v. California, and its so-called "bad tendency" test—i.e., its ruling that speech could be banned if it "tend[ed] to incite crime, disturb the public peace, or endager the foundations of organized government." In its place the Court substituted the "imminent lawless action" test:
- [T]he 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.
The "imminent lawless action" test combines the most speech-protective parts of two existing tests that had been stated by the federal courts: Justice Holmes's "clear and present danger" test as declared in Schenck v. United States, and Judge Learned Hand's test, stated in Masses Publishing v. Patten : "If one stops short of urging upon others that it is their duty or their interest to resist the law, it seems to me one should not be held to have attempted to cause its violation."
The "imminent" part of the "imminent lawless action" test came from Holmes's formulation, and the "lawless" part from Hand's. As of 2005, the test continues to be the standard test of whether inflammatory speech is constitutionally protected.
- Text of decision (at FindLaw.com)
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