Brandenburg v. Ohio

395 U.S. 444 (1969)


Appellant, leader of a Ku Klux Klan group, phoned a reporter on the staff of a Cincinnati TV station and invited him to come to a KKK rally at a farm.  The reporter and a cameraman attending the meeting and filmed the events and portions of it were later broadcast on the local station and on a national network.  The film showed 12 hooded figures, some of whom carried guns, gathered around a large wooden cross, which they burned.  In the video, scattered phrases could be understood to be derogatory of blacks and Jews.  Appellant could also be seen making a speech in which he stated that “it’s possible that there might have to be some revengence taken” if the government continued “to suppress the white, Caucasian race.”  While others in the video carried weapons, the speaker did not.

Procedural History

Appellant was convicted under the Ohio Criminal Syndicalism statute of “advocat[ing] . . . the duty, necessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform” and of “voluntarily assembl[ing] with any society, group or assemblage of persons formed to teach or advocated the doctrines of criminal syndicalism.”


Is speech that advocates violence or violation of the law protected under the First Amendment?

Rule / Holding

Reversed.  The government may outlaw such speech only when it is directed to inciting or producing “imminent lawless action” and is likely to incite or produce such action.


Abstract advocacy of the moral propriety or necessity of using force or violence is not the same as preparing a group for imminent violent action.  The statute is therefore unconstitutional as it does not distinguish mere advocacy from incitement to imminent lawless action.

Douglas concurred, stating that there was no place in First Amendment law for any “clear and present danger” test.  He argued that the line dividing protected and unprotected speech is the line between ideas and overt acts.

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