Brandenburg, a Ku Klux Klan leader, made a speech at a Klan rally and was later convicted under an Ohio criminal syndicalism
Speech advocating illegal conduct is protected under the First Amendment unless the speech is likely to incite imminent lawless action.
Brandenburg, a leader in the Ku Klux Klan, made a speech at a Klan rally. He made anti-Semitic and anti-black statements and alluded to the possibility of “revengeance” in the event that the federal government and Court continued to “suppress the white, Caucasian race.” Brandenburg was later convicted under an Ohio criminal syndicalism The law made illegal advocating “crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform,” as well as assembling “with any society, group, or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism.”
Did Ohio’s criminal syndicalism law, prohibiting public speech that advocates various illegal activities, violate Brandenburg’s right to free speech as protected by the First and Fourteenth Amendments?
Yes, Ohio’s criminal syndicalism law violated Brandenburg’s right to free speech.
The “clear and present danger” test has been distorted beyond recognition in cases decided by this Court. There is no place for it in the regime of the First Amendment.
The Court held that the Ohio law violated Brandenburg’s right to free speech. The Court used a two-pronged test to evaluate speech acts: (1) speech can be prohibited if it is directed at inciting or producing imminent lawless action and (2) it is likely to incite or produce such action. Ohio’s criminal syndicalism law criminalized the advocacy and teaching of doctrines, while ignoring whether or not that advocacy and teaching would actually incite imminent lawless action. The mere abstract teaching of the need to resort to violence is not the same as preparing a group for violent action. The failure to make this distinction rendered the law overly broad and in violation of the Constitution.