Brandenburg v. Ohio

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 previous cases addressing the subject. According to the Court's decisions in the preceding cases, the courts

. . . have fashioned the principle that 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 . . . 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 the right to speak and organize even when the message and purpose is offensive to American values. Additionally, the Whitney decision was specifically overruled 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 speech by 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 to the violent overthrow of government, Brandenburg, the last major decision of the Warren Court, was highly regarded as the decision finally closing the door to the repressive McCarthy era.