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Brandenburg V. Ohio | bgcolor="6699FF" | Brandenburg v. Ohio | align="center" | 100px
Supreme Court of the United States | bgcolor="6699FF" | Argued Feb. 27, 1969
Decided June 9, 1969 | | {| align="center" | | valign="top"|Full case name: | valign="top"|Clarence Brandenburg v. Ohio | | valign="top"|Citations: | valign="top"|395 U.S. 444; 89 S. Ct. 1827; 23 L. Ed. 2d 430; 1969 U.S. LEXIS 1367; 48 Ohio Op. 2d 320 | | valign="top"|Prior history: | valign="top"|Defendant convicted, Court of Common Pleas, Hamilton County, Ohio, 12-5-66; affirmed without opinion, Court of Appeals of the First Appellate District of Ohio, 2-16-68; appeal dismissed without opinion, Supreme Court of Ohio, 6-12-68; probable jurisdiction noted, 393 U.S. 948 (1968) | | valign="top"|Subsequent history: | valign="top"|none | } | | bgcolor="6699FF" | Holding | | Ohio's criminal syndicalism statute violated the First Amendment, as applied to the state through the Fourteenth, because it broadly prohibited the mere advocacy of violence rather than the constitutionally unprotected incitement to imminent lawless action. | | bgcolor="6699FF" | Court membership | | {| align="center" | | Chief Justice: Earl Warren | | Associate Justices: Hugo Black, William O. Douglas, John Marshall Harlan II, William Brennan, Potter Stewart, Byron White, Thurgood Marshall | } | | bgcolor="6699FF" | Case opinions | | {| align="center" | | Majority by: per curiam | | Joined by: unanimous court | | Concurrence by: Black | | Concurrence by: Douglas | } | | bgcolor="6699FF" | Laws applied | | U.S. Const. amend. I, XIV; Ohio Rev. Code 2923.13 | Brandenburg v. Ohio, was a United States Supreme Court case based on the First Amendment to the U.S. Constitution. Clarence Brandenburg was a Ku Klux Klan leader convicted of advocating violence under Ohio's Criminal Syndicalism statute. In a per curiam opinion thought to have been written by Justice Brennan, the Court overturned his conviction on the grounds that the statute violated the First and Fourteenth Amendments. Brandenburg's significance lies in its explicit rejection of an earlier Supreme Court case, Whitney v. California, and its so-called "bad tendency" test—i.e., its ruling that speech could be banned if it "tended to incite crime, disturb the public peace, or endager the foundations of organized government." In its place the Court substituted the "imminent lawless action" test: - 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 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.
The "imminent lawless action" test combines the most speech-protective parts of two existing tests that had been stated by the federal courts: Justice Holmes's "clear and present danger" test as declared in Schenck v. United States, and Judge Learned Hand's test, stated in Masses Publishing v. Patten: "If one stops short of urging upon others that it is their duty or their interest to resist the law, it seems to me one should not be held to have attempted to cause its violation." The "imminent" part of the "imminent lawless action" test came from Holmes's formulation, and the "lawless" part from Hand's. As of 2005, the test continues to be the standard test of whether inflammatory speech is constitutionally protected. See also External link
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