Brandenburg v. Ohio

Citation. 395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969).

Brief Fact Summary.

Defendant challenged his conviction, arguing the Ohio Criminal Syndicalism statute he was convicted under was unconstitutional because it violated the First and 14th Amendments.

Synopsis of Rule of Law.

Speech is not protected if it is directed at inciting or producing imminent lawless action and is likely to incite or produce such action.

Facts.

Defendant was convicted under the Ohio Criminal Syndicalism statute after he made a speech referencing a possibility of revengeance on the government. Defendant challenged his conviction under the First and 14th Amendments, arguing the statute violated his right to free speech.

Issue.

Whether the Ohio Criminal Syndicalism statute, which prohibited public speech that advocated for violent and illegal activities, violates an individual’s right to free speech under the First and 14th Amendments.

Held.

Yes. The Ohio Criminal Syndicalism statute, which prohibited public speech that advocated for violent and illegal activities, violates an individual’s right to free speech under the First and 14th Amendments.

Concurrence.

Justice Douglas

I see no place in the regime of the First Amendment for a clear and present danger test. Such test has and will continue to be perverted. Speech and action are inseparable. No constitutional line can be drawn. Apart from rare instance, speech should be immune from prosecution.

Discussion.

The statute does not address the issue of whether such advocacy or teaching would actually incite imminent lawlessness. Mere abstract teach is not enough under our past precedent. Rather, the language must expressly advocate violence, advocate immediate violence, and relate to the violence likely to occur. Judgement reversed.