Brandenburg v. Ohio

The ruling reversed a previous Supreme Court decision setting a new precedent for 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 situations involving mass communications through the Internet and popular talk-shows in the 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 gripped America. Determined to suppress radicals and anarchists who would violently disrupt political and social order to bring about change, thirty-three states enacted 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 person from 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 would be judged was formulated by Justice Oliver Wendell Holmes in Schenck v. United States (1919) which involved violations of the federal Espionage Act of 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 and less restrictive in days of peace. The Supreme Court was continually pressed to 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 States also 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 present danger 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 pass or revitalize laws prohibiting organizations perceived as dangerous to the United States. The focus again was communist activity. The Dennis v. United States (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 of the 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 association against 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.