Clarence Brandenburg, a Ku Klux Klan leader in Ohio, invited a television station to film a Klan rally. The filmed event showed robed participants, firearms, and speeches containing racist slurs and references to possible "revengeance" against the government for suppressing the white race. Ohio prosecuted Brandenburg under its criminal syndicalism statute for advocating crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing political reform and for assembling with a group formed to teach such doctrines. He was convicted, fined, and sentenced to prison.
Does the First and Fourteenth Amendments permit a state to punish advocacy of violence or illegal conduct under a criminal syndicalism law when the speech does not incite imminent lawless action?
The government may not forbid or punish advocacy of the use of force or of law violation except where the 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 desirability of violence is protected speech.
No. The Ohio criminal syndicalism law, as applied to Brandenburg, violated the First and Fourteenth Amendments because it punished mere advocacy rather than intentional incitement of imminent lawless action likely to occur.
The Court drew a constitutional line between abstract advocacy and incitement. It held that speech advocating force or law violation loses protection only when it is intended to produce imminent unlawful conduct and is likely to do so. Ohio's statute broadly punished advocacy itself and therefore reached protected expression. In doing so, the Court rejected the more speech-restrictive approach of Whitney v. California, 274 U.S. 357 (1927), to the extent it allowed punishment of mere advocacy.
Brandenburg is the modern foundational First Amendment incitement case. It established the stringent "imminent lawless action" test, substantially strengthening protection for political advocacy, even hateful or extremist advocacy, unless it is both intended and likely to trigger immediate unlawful conduct. The decision effectively displaced the bad-tendency and broad criminal-syndicalism approaches reflected in Whitney v. California, 274 U.S. 357 (1927), and it built on the distinction between abstract doctrine and advocacy of action recognized in Yates v. United States, 354 U.S. 298 (1957). It remains central in later incitement and advocacy cases, including Hess v. Indiana, 414 U.S. 105 (1973), and NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982).
Whitney v. California, 274 U.S. 357 (1927) |
Abstain |
Yates v. United States, 354 U.S. 298 (1957) |
Abstain |
Hess v. Indiana, 414 U.S. 105 (1973) |
Abstain |
NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982) |
Abstain |
Whitney v. California, 274 U.S. 357 (1927) |
Abstain |
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