Brandenburg v. Ohio

Appellant
Clarence Brandenburg
Appellee
State of Ohio
Appellant's Claim
That conviction of Brandenburg under the Ohio Criminal Syndicalism Act violated the free speech clauses of the First and Fourteenth Amendments.
Chief Lawyer for Appellant
Allen Brown
Chief Lawyer for Appellee
Leonard Kirschner
Justices for the Court
Hugo L. Black, William J. Brennan, Jr., William O. Douglas, Abe Fortas, JohnM. Harlan II, Thurgood Marshall, Potter Stewart, Earl Warren, Byron R. White(unsigned)
Justices Dissenting
None
Place
Washington, D.C.
Date of Decision
9 June 1969
Decision
Ruled in favor of Brandenburg and overturned lower court decisions upholdingBrandenburg's conviction under the Ohio Criminal Syndicalism Act.
Significance
The ruling reversed a previous Supreme Court decision setting a new precedentfor the "clear and present danger" standard in First Amendment cases. The Court now held that a person's words were protected as free speech as long as they did not directly incite unlawful action. Concerns became raised later that the standard established in the decision was not appropriate in situationsinvolving mass communications through the Internet and popular talk-shows inthe 1980s and 1990s.
Between 1917 and 1920 in the aftermath of World War I and the Russian Bolshevik Revolution, nationalism and patriotism swept the country at a fever pitch.At the same time, fear of communism and the people who supported it grippedAmerica. Determined to suppress radicals and anarchists who would violently disrupt political and social order to bring about change, thirty-three statesenacted sedition or criminal syndication laws. "Syndicates" are groups of people undertaking a project that they would not be able to attempt individually. To advocate, teach, or aid in an illegal act of violence to bring about political or industrial reform was now unlawful. These laws prohibited a personfrom organizing or meeting with any group that promoted "criminal syndicalism," meaning the attempted organized, violent takeover of the state.
The framework and standard by which future criminal syndicalism claims wouldbe judged was formulated by Justice Oliver Wendell Holmes in Schenck v. United States (1919) which involved violations of the federal Espionage Actof 1917. The standard, known as the "clear and present danger" test, required deciding whether a person's words "create a clear and present danger that they will bring about substantive evils that Congress has a right to prevent.It is a question of proximity and degree."
Beginning with Schenck and for the following five decades, history echoed a valuable lesson: governments are more repressive in times of crisis andless restrictive in days of peace. The Supreme Court was continually pressedto decide where First Amendment protections end and the government's right or obligation to restrict threatening expression begins.
The year 1919 saw the Court affirm several more convictions using the clear and present danger test. Near the end of 1919, Abrams v. United Statesalso involving Espionage Act violations pushed the test to a much more restrictive level. Moving away from the imminent danger language, Abrams emphasized that if the defendant's expressive words simply had a tendency to cause illegal actions, that was sufficient to convict. Justice Holmes dissented,reemphasizing his belief that expression could not be suppressed unless it constituted an immediate danger. Yet, with Abrams the clear and presentdanger standard evolved to the much more repressive constitutional interpretation, the "bad tendency" test. Continuing to combat the "Red Menace," two cases involving state criminal syndication statutes, Gitlow v. New York(1925) and Whitney v. California (1927), were judged using the bad tendency standard and the convictions upheld. In Whitney, Charlotte Whitney, a well known California heiress and member of the Oakland branch of the Socialist Party, was found guilty of organizing and associating with a party whose aim was to overthrow the United States government.
By the early 1930s Americans developed a strong self-consciousness of their civil liberty heritage. The fear of anarchists subsided and this trend was reflected in Court decisions reversing state criminal syndication convictions. The Court found these laws unnecessarily restrictive of the rights of free speech. The tide seemingly flowed back to the clear and present danger standard.
Following World War II, the emergence of the Cold War, a second Red Scare, and McCarthyism led many states in the late 1940s through the mid-1950s to passor revitalize laws prohibiting organizations perceived as dangerous to the United States. The focus again was communist activity. The Dennis v. UnitedStates (1951) decision exhorted courts to consider if the "gravity of the evil, discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger." Referred to as the clear and probable danger test, the ruling marked a return to the bad tendency views ofthe post-World War I period.
Once the second Red Scare passed, the Supreme Court, with a series of decisions handed down in the early 1960s, began defending expression and associationagainst repressive legislation passed during the McCarthy era. Concurrently,the nation's focus shifted away from communism to civil rights and Vietnam War demonstrations. Some states began to look at their criminal syndication laws as a way to curb anti-government protests.
The Ohio Criminal Syndicalism Law
The Ohio Criminal Syndicalism statute, enacted in 1919, made a crime of advocating "the duty, necessity or propriety of crime sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or politicalreform" and "voluntary assembl[ing] with any society, group, or assemblage ofpersons formed to teach or advocate the doctrine of criminal syndicalism."
A Ku Klux Klan leader, Clarence Brandenburg, organized a rally in Hamilton County, Ohio. Before the rally, Brandenburg telephoned a Cincinnati televisionreporter, asking him to cover the event. The reporter and a cameraman attended the rally. About a dozen Klansmen participated. The Klansmen burned a crossand Brandenburg dressed in full Klan regalia delivered a speech saying in part, "We're not a revengent [sic] organization, but if our President, our Congress, our Supreme Court, continue to suppress the white Caucasian race, it'spossible that there might have to be some revengence [sic] taken." Klansmen shouted racist slogans against African Americans and demanded all Jews be sentto Israel.
The reporters taped the cross-burning and shouting of racist sentiments and broadcast them on the local news. Based on the films, Brandenburg was chargedand later convicted of violating Ohio's Criminal Syndicalism Act. He appealedclaiming the Ohio law violated his free speech rights under the First and Fourteenth amendments. The appeals court affirmed his conviction without offering an opinion. Brandenburg then appealed to the Ohio Supreme Court, which dismissed his appeal, claiming no substantial constitutional issues were involved. The U.S. Supreme Court agreed to hear the case.
Whitney Reversed
The unanimous decision of the court was delivered per curiam, which means the justice who authored the Court's decision was not identified. The Court reversed Brandenburg's conviction which was based on his racist speech suggesting the possibility of violence at some future time and found Ohio's Criminal Syndicalism Act invalid.
The Court's powerful but briefly written decision cited the numerous previouscases addressing the subject. According to the Court's decisions in the preceding cases, the courts

. . . have fashioned the principle thatthe 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 violationexcept where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action . . . A statute which fails to draw upon this distinction impermissibly intrudes upon the freedoms guaranteed by the First and Fourteenth Amendments. It sweeps within it condemnation speech which our Constitution has immunized from government control. . . measured by this test, Ohio's Criminal Syndicalism Act cannot be sustained . . . Such a statute falls within the condemnation of the First and Fourteenth Amendments.

Although the words never appear in the decision, the Court returned to Holmes' clear and present danger test and added the incitement test to it. No longer could a mere bad tendency suffice to support government suppression. Rather, suppression was allowed only if the expression directly incited action. Frequently referred to as the Brandenburg test, the justices affirmed theright to speak and organize even when the message and purpose is offensive to American values. Additionally, the Whitney decision was specificallyoverruled in this decision.
Justices William O. Douglas and Hugo L. Black, writing in a concurring opinion, would seemingly go a step further and remove all restrictions from speechby stating that they see no place in the spirit of the First Amendment for any clear and present danger test whatsoever.
Although having nothing to do with the Communist Party or groups dedicated tothe violent overthrow of government, Brandenburg, the last major decision of the Warren Court, was highly regarded as the decision finally closingthe door to the repressive McCarthy era.
Impact
Brandenburg, the Court's first review of a 1960s application of criminal syndication law, resulted in a landmark philosophy succinctly casting doubt on all such laws. To many, the decision reopened the door to the original clear and present danger restrictions. The Brandenburg decision provided First Amendment protection to public discourse important for self-governingsocieties to legitimately operate.
Some legal scholars acclaimed the Brandenburg test as the foundation for the modern interpretation of free speech. The test allowed for a greater degree of political discussion. People have the right to discuss the possibility of using violence to address social and political ills. Only when their words lead to direct action is the law broken. Later, some claimed the Brandenburg standard was outdated for the new high-speed, global communications era of the late 1980s and 1990s. They asserted speech clearly advocating illegal and murderous violence that reaches mass audiences through the Internetor popular talk-show programs should be held to different standards. Examples used to illustrate which speech should not be constitutionally protected included the posting of bomb-making instructions over the Internet and radio talk-show hosts describing how to kill Federal law enforcement agents wearing protective gear. Critics argued the Brandenburg standard should only beapplied to situations involving a limited number of immediate listeners. Odds of violence directly resulting from the speech advocating murderous actionsover a mass communications medium was considered significantly greater thanwith smaller forums. It would take only a few people out of millions of "listeners" to lead to violent acts aimed at killing people. Such speech was considered quite different than calls for civil disobedience by Martin Luther King, Jr. in the 1960s.
Related Cases

• Schenck v. United States, 249 U.S. 47 (1919).
  
• Abrams v. United States, 250 U.S. 616 (1919).
  
• Gitlow v. New York, 268 U.S. 652 (1925).
  
• Whitney v. California, 274 U.S. 357 (1927).
  
• Dennis v. United States, 341 U.S. 494 (1951).