Brandenburg v. Ohio
Decided on June 9, 1969, 395 US 444


Mere advocacy of the use of force, or of violation of law is protected by the First Amendment free speech clause. States can proscribe advocacy only when it is directed at producing "imminent lawless action" and is likely to produce such action.

 

I. ISSUES II. CASE SUMMARY III. AMICI CURIAE IV. DECISION V. WIN OR LOSS?
I. ISSUES:

A. Issues Discussed: Freedom of expression and association

B. Legal Question Presented:

Is the Ohio Criminal Syndicalism statute, which prohibits "advocat[ing] . . . the duty, necessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform" and for "voluntarily assembl[ing] with any society, group, or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism," constitutional?

II. CASE SUMMARY:

A. Background:

"The appellant, a leader of a Ku Klux Klan group, was convicted under the Ohio Criminal Syndicalism statute for 'advocat[ing] . . . the duty, necessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform' and for 'voluntarily assembl[ing] with any society, group, or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism.' Ohio Rev. Code Ann. 2923.13.

He was fined $1,000 and sentenced to one to 10 years' imprisonment. The appellant challenged the constitutionality of the criminal syndicalism statute under the First and Fourteenth Amendments to the United States Constitution, but the intermediate appellate court of Ohio affirmed his conviction without opinion. The Supreme Court of Ohio dismissed his appeal, sua sponte, 'for the reason that no substantial constitutional question exists herein.' It did not file an opinion or explain its conclusions." 

On appeal the Supreme Court reversed the judgment of the Supreme Court of Ohio.

B. Counsel of Record:
ACLU Side
(Petitioner/Appellant)
Opposing Side
(Respondent/Appellee)
Unavailable Unavailable
C. The Arguments:
ACLU Side
(Petitioner/Appellant)
Opposing Side
(Respondent/Appellee)
Unavailable Unavailable
III. AMICI CURIAE:
ACLU Side
(Petitioner/Appellant)
Opposing Side
(Respondent/Appellee)
Allen Brown argued the cause for appellant. With him on the briefs were Norman Dorsen, Melvin L. Wulf, Eleanor Holmes Norton, and Bernard A. Berkman. Leonard Kirschner argued the cause for appellee. With him on the brief was Melvin G. Rueger.

Paul W. Brown, Attorney General of Ohio, pro se, and Leo J. Conway, Assistant Attorney General, filed a brief for the Attorney General as amicus curiae.

IV. THE SUPREME COURT'S DECISION:

This court has "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.

'[T]he 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...'  A statute which fails to draw this distinction impermissibly intrudes upon the freedoms guaranteed by the First and Fourteenth Amendments. It sweeps within its condemnation speech which our Constitution has immunized from governmental control.

Measured by this test, Ohio's Criminal Syndicalism Act cannot be sustained... we are here confronted with a statute which, by its own words and as applied, purports to punish mere advocacy and to forbid, on pain of criminal punishment, assembly with others merely to advocate the described type of action. Such a statute falls within the condemnation of the First and Fourteenth Amendments."

The US Supreme Court reversed the judgment of the Ohio Supreme Court.

Justice Vote: 9 Pro vs. 0 Con
Per Curiam decision (no individual authorship of majority opinion)
  • Harlan, J.  Pro
  • Warren, E.  Pro
  • White, B.  Pro
  • Stewart, P.  Pro
  • Marshall, T.  Pro
  • Burger, W.  Pro
  • Brennen, W.  Pro
  • Black, H. Pro (Wrote concurring opinion)
  • Douglas, W. Pro (Wrote concurring opinion)
  • V. A WIN OR LOSS FOR THE ACLU?

    The ACLU, as counsel of record, urged reversal of the judgment of the Supreme Court of Ohio; the US Supreme Court reversed the lower court's decision in a 9-0 vote, giving the ACLU an apparent win.