--- title: "Brandenburg v. Ohio" type: Landmark Case source: https://casebriefly.com/landmark-cases/brandenburg-v-ohio --- # Brandenburg v. Ohio Brandenburg v. Ohio established the modern test for when the government may punish speech advocating illegal action, holding that the First Amendment protects such speech unless it is directed to inciting imminent lawless action and is likely to produce such action. The case overruled Whitney v. California and replaced the clear and present danger test with a more speech-protective standard. ## Citation 395 U.S. 444 (1969) ## Year 1969 ## Court Supreme Court of the United States ## Facts Clarence Brandenburg, a Ku Klux Klan leader in rural Ohio, invited a television reporter to film a Klan rally. At the rally, hooded figures gathered around a burning cross, and Brandenburg made speeches containing derogatory remarks about Black and Jewish people and suggested that 'revengeance' might need to be taken if the government continued to suppress the white race. He was convicted under Ohio's Criminal Syndicalism Act, which prohibited advocating crime, sabotage, or violence as a means of accomplishing political reform. ## Procedural History Brandenburg was convicted in the Court of Common Pleas of Hamilton County, Ohio, and sentenced to a fine and one to ten years' imprisonment. The intermediate appellate court and the Ohio Supreme Court affirmed. The United States Supreme Court reversed. ## Issue Does a state criminal syndicalism statute that punishes mere advocacy of violence violate the First and Fourteenth Amendments? ## Holding The Court held per curiam that the Ohio statute was unconstitutional because it punished mere advocacy of violence rather than incitement to imminent lawless action. The Court established that the constitutional guarantees of free speech do not permit a state to forbid 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. ## Reasoning The per curiam opinion drew on the evolution of the clear and present danger doctrine to establish a two-part test: speech advocating illegal conduct is protected by the First Amendment unless (1) it is directed to inciting or producing imminent lawless action, and (2) it is likely to incite or produce such action. The Court distinguished between abstract advocacy of ideas, which is protected, and speech that is intended and likely to produce imminent illegal action, which is not. Whitney v. California was expressly overruled to the extent it permitted punishment of mere advocacy. ## Impact Brandenburg's incitement test remains the governing standard for evaluating when the government may punish speech advocating illegal conduct. The test provides robust protection for political speech, even when it advocates radical or extreme positions, unless it crosses the line into incitement of imminent lawless action. The standard has been applied to a wide range of cases involving protest speech, extremist advocacy, and political dissent. ## Key Quotes - 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. - The mere abstract teaching... of the moral propriety or even moral necessity for a resort to force and violence, is not the same as preparing a group for violent action and steeling it to such action. - Whitney v. California... was thoroughly discredited by later decisions and is overruled. ## Related Cases - new-york-times-v-sullivan - tinker-v-des-moines - texas-v-johnson - schenck-v-united-states ## Exam Relevance Brandenburg is essential for First Amendment exams, particularly those involving protest speech, hate speech, and the limits of advocacy. Professors frequently test whether students can apply the two-part incitement test to specific fact patterns, distinguishing between protected advocacy and unprotected incitement. Students should also understand the doctrinal evolution from Schenck's clear and present danger test through Dennis to Brandenburg. ## Study Tips - Memorize the two-part test: (1) directed to inciting imminent lawless action, and (2) likely to produce such action. - Understand the distinction between abstract advocacy (protected) and incitement to imminent action (unprotected). - Trace the evolution from Schenck's clear and present danger through Dennis's gravity of the evil test to Brandenburg's incitement standard. - Consider how Brandenburg applies to modern issues like online speech and social media advocacy. ## Doctrine Established Imminent Lawless Action Test --- Source: [Brandenburg v. Ohio — CaseBriefly](https://casebriefly.com/landmark-cases/brandenburg-v-ohio)