Brandenburg v. Ohio, 395 U.S. 444; 89 S. Ct. 1827; 23 L. Ed. 2d 430 (1969)

Facts—Brandenburg, a Ku Klux Klan leader, was convicted under Ohio’s criminal syndicalism statute for remarks that he had been taped making at a Klan rally where he had used racially derogatory terms and mentioned the possibility of taking “revengeance.” Ohio’s intermediate court of appeals and the state supreme court had both dismissed Brandenburg’s appeal.

Question—Does Ohio’s criminal syndicalism law violate freedom of speech as guaranteed by the First and Fourteenth Amendments?

Decision—Yes.

Reasons—Per Curiam (8–0). The Court argued that later decisions had undermined Whitney v. California, 174 U.S. 357 (1927), which had upheld state criminal syndicalism laws. California’s syndicalism law was infirm because it defined criminal activity in terms “of mere advocacy not distinguished from incitement to imminent lawless action.”

J. Black and J. Douglas both authored concurring opinions claiming that the Court should abandon the “clear and present danger test.”