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.
Issue. Does the Ohio Syndicalism Statute violate the First and Fourteenth Amendments as applied to Appellant?
Held. 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.
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 law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.View Full Point of Law