Brief Fact Summary. An Ohio law prohibited the teaching or advocacy of the doctrines of criminal syndicalism. The Defendant, Brandenburg (Defendant), a leader in the Ku Klux Klan, made a speech promoting the taking of vengeful actions against government and was therefore convicted under the Ohio Law.
Synopsis of Rule of Law. Speech can be prohibited if it is “directed at inciting or producing imminent lawless action” and it is likely to incite or produce such action.
(Per Curiam) The Act properly made it illegal to advocate or teach doctrines of violence, but did not address the issue of whether such advocacy or teaching would actually incite imminent lawlessness. The mere abstract teaching of the need or propriety to resort to violence is not the same as preparing a group for violent action. Because the statute failed to provide for the second part of the test it was overly broad and thus in violation of the First Amendment of the Constitution.
Justice Hugo (J. Black) I agree with Justice William Douglas (J. Douglas) in his concurring opinion of this case that the “clear and present danger” doctrine should have no place in our interpretation of the First Amendment of the Constitution.
J. Douglas argues that the how the “clear and present danger” test has been applied in the past is disconcerting. First, the threats to which it was applied were often loud but puny. Second, the test was so perverted as to make trial of those teachers of Marxism all out political trials, which had the effect of eroding substantial parts of the First Amendment of the Constitution.
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Discussion. In order for “incitement to violence” speech to be constitutionally barred, Brandenburg sets a new standard. The language must (1) expressly advocate violence; (2) advocate immediate violence and (3) relate to violence likely to occur.