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Brandenbeurg v. Ohio

Citation. 22 Ill.395 U.S. 444, 89 S. Ct. 1827, 23 L. Ed. 2d 430 (1969)
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Brief Fact Summary.

Brandenbeurg (Appellant), a member of the Klu Klux Klan, was indicted and convicted under the Ohio Criminal Syndicalism Statute for advocating political reform through unlawful methods. The speech in question discussed returning certain races to their homeland. Appellant challenges the constitutionality of this law, arguing that it infringes upon his First and Fourteenth Amendment rights to free speech and free assembly.

Synopsis of Rule of Law.

A statute can constitutionally limit an incitement to imminent lawless action; but cannot limit the mere advocacy of ideas, or the assembly to advocate these ideas as the First and Fourteenth Amendments protect these forms of speech.


Appellant allegedly telephoned a reporter on the staff of a Cincinnati television station and invited him to come to a Klu Klux Klan rally to be held at a Hamilton County farm. At trial, the reporter identified appellant as the individual who called him and as the individual who spoke at the rally. At the rally crosses were burned, and a speech was made that talked about vengeance against certain races, including returning some races to their homelands. Appellant was convicted under the Ohio Criminal Syndicalism Statute, which prohibits “advocating the duty, necessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform.” At trial Appellant was fine $1,000 and sentenced to one to ten years in jail. Appellant appealed challenging the constitutionality of the criminal syndication statute under the First and Fourteenth Amendments of the United States Constitution, which protected his rights of free
speech and free assembly under the United States Constitution. The Ohio appeals court upheld his conviction, and the Supreme Court of Ohio dismissed his appeal on the grounds that no substantial constitutional question exists. Appellant then appealed to the United States Supreme Court.


Does the Ohio Syndicalism Statute violate the First and Fourteenth Amendments as applied to Appellant?


Yes. The Ohio Syndicalism Statute by its own words, and as applied, purports to punish mere advocacy and forbids, through criminal punishment, assembly with others merely to advocate the described type of action. Such a statute violates an individuals First and Fourteenth Amendment rights guaranteed by the United States Constitution. Mere advocacy must be distinguished from incitement to imminent lawless action. The former being protected speech, while the later can be restricted by legislation to protect public health and welfare.
The “clear and present danger” doctrine should have no place in the interpretation of the First Amendment.
Sees many problems with the “clear and present danger” test. First, many threats were loud but always puny, yet became overemphasized by judges. Second, the test is so twisted as to have eroded substantial parts of the First Amendment. The line between what is permissible and what is no is t he line between idea and overt acts. Government has no power to invade the sanctuary of belief and conscience.


This case clearly outlines the limits by which a state can interfere with the rights to speech and assembly. The clear line is placed that protects speech and assembly if it is for the advocacy of ideas, no matter how repugnant they may seem. But, speech and assembly may be limited if it is to incite imminent lawless action. This case distinguishes between those types of speech that are a threat to public health and welfare, and those that are merely a threat to commonly held ideology. This case is also an example of the “clear and present danger” test applied to the First Amendment. This case, although it does explicitly mention the test by name, believes that free speech is restricted only when it becomes a danger of imminent lawlessness.

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