Shelbie Schupp
PRL440-01-OLC-1920-4 – Constitutional Issues
Brandenburg v. Ohio
United States Supreme Court
395 U.S. 444 (1969)
Facts
Brandenburg (defendant) was a leader of the Ku Klux Klan in the State of Ohio (plaintiff).
Brandenburg was convicted under the Ohio Criminal Syndicalism Act (OCSA) 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 society, group, or assemblage of persons formed to teach or advocate the doctrines of
criminal syndicalism.” He was arrested after inviting a news reporter to attend a Ku Klux Klan
rally. The reporter filmed Brandenburg in Klan regalia, burning a cross and uttering speech that
was derogatory to African Americans and Jews. Brandenburg was convicted in Ohio state court,
and was fined and sentenced to ten years’ imprisonment. He challenged his conviction on the
grounds that the OCSA violated his First Amendment right to free speech.
Issues
Whether an Ohio statute that criminalizes syndicalism violates the First and Fourteenth
Amendments.
Holding
Yes. A state may only forbid speech that advocates violence or the use of force if that speech is
directed and likely to incite imminent illegal activity without abridging the freedoms of speech
and the press. While the Court upheld a similar criminal syndicalism statute in Whitney v.
California, 274 U.S. 357 (1927), that decision was thoroughly discredited by later jurisprudence,
including Dennis v. United States, 341 U.S. 494 (1951). These later cases established that the
constitutional guarantees of free speech do not permit “a state to forbid or proscribe advocacy of
the use 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.” In contrast, the
mere abstract teaching of a need to resort to force or violence is upheld as protected by the First