Brandenburg v. Ohio

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 political reform" and "voluntary assembl[ing] with any society, group, or assemblage of persons 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 television reporter, asking him to cover the event. The reporter and a cameraman attended the rally. About a dozen Klansmen participated. The Klansmen burned a cross and 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's possible that there might have to be some revengence [sic] taken." Klansmen shouted racist slogans against African Americans and demanded all Jews be sent to 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 charged and later convicted of violating Ohio's Criminal Syndicalism Act. He appealed claiming 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.