Brandenburg v. Ohio

Brief Fact Summary.

The appellant, as a leader of a Ku Klax Klan group, had spoken derogatory words at its rally and was convicted under the Ohio Criminal Syndicalism.

Synopsis of Rule of Law.

The constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the user 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.

Facts.

The appellant, a leader of a Ku Klax Klan group, was convicted under the Ohio Criminal Syndicalism statute for “advocating the duty, necessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform” and for “voluntarily assembling with any group of persons formed to each or advocate the doctrines of criminal syndicalism.” The appellant allegedly telephoned an announcer-reporter on the staff of a Cincinnati television station and invited him to come to a Ku Klux Klan rally to be held at a farm in Hamilton County. The reporter and a cameraman attended the meeting and filmed the events. The films showed hooded figures carrying firearms and they uttered incomprehensible phrases but could be understood that were derogatory of Negroes and Jews.

Issue.

Does the Ohio Criminal Syndicalism statute that criminalizes the act or advocating syndicalism violate the Constitution?

Held.

Yes, the Ohio Criminal Syndicalism statute, by its own words and as applied, purports to punish mere advocacy and to forbid, on pain of criminal punishment, assembly with others merely to advocate the described type of action. Such a statute falls within the condemnation of the First and Fourteenth Amendments. Therefore, the statute cannot be supported.

Discussion.

The Court sustained the constitutionality of California’s Criminal Syndicalism Act in 1927 in Whitney v. California, which is similar to the laws of Ohio on the ground that advocating violent means to effect political and economic change involves such danger to the security of the State that the State may outlaw it. But Whitney has been discredited by later decisions, which have fashioned the principle that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the user 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. A statute which fails to draw this distinction impermissibly intrudes upon the freedoms guaranteed by the First and Fourteenth Amendments.