Brandenburg v. Ohio
|
|
| Brandenburg v. Ohio |
Supreme Court of the United States
|
Argued Feb. 27, 1969
Decided June 9, 1969
|
| Full case name: |
Clarence Brandenburg v. Ohio |
| Citations: |
395 U.S. 444; 89 S. Ct. 1827; 23 L. Ed. 2d 430; 1969 U.S. LEXIS 1367; 48 Ohio Op. 2d 320 |
| Prior history: |
Defendant convicted, Court of Common Pleas, Hamilton County, Ohio, 12-5-66; affirmed without opinion,
Court of Appeals of the First Appellate District of Ohio, 2-16-68; appeal dismissed without opinion, Supreme Court of Ohio,
6-12-68; probable jurisdiction noted, 393 U.S. 948 (1968) |
| Subsequent history: |
none |
|
| Holding |
| Ohio's criminal syndicalism statute violated the First Amendment, as applied to the state through the Fourteenth, because it
broadly prohibited the mere advocacy of violence rather than the constitutionally unprotected incitement to imminent lawless
action. |
| Court membership |
| Chief Justice Earl Warren |
| Associate Judges Hugo Black, William O. Douglas, John Marshall Harlan II, William Brennan, Potter Stewart, Byron
White, Thurgood Marshall |
|
| Case opinions |
| Majority by: per curiam |
| Joined by: unanimous court |
| Concurrence by: Black |
| Concurrence by: Douglas |
|
| Laws applied |
| U.S. Const. amend. I, XIV; Ohio Rev. Code ยง 2923.13 |
Brandenburg v. Ohio, 395 U.S.
444 (http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=CASE&court=US&vol=395&page=444)
(1969) was a United States Supreme Court case based on the First
Amendment to the U.S. Constitution.
Clarence Brandenburg was a Ku Klux Klan leader convicted of advocating
violence under Ohio's Criminal Syndicalism statute. In a per curiam opinion thought to have
been written by Justice Brennan, the Court overturned his conviction
on the grounds that the statute violated the First and Fourteenth Amendments.
Brandenburg's significance lies in its explicit rejection of an earlier Supreme Court case, Whitney v. California, and its so-called "bad tendency"
test—i.e., its ruling that speech could be banned if it "tend[ed] to incite crime, disturb the public peace, or endager the
foundations of organized government." In its place the Court substituted the "imminent lawless action" test:
- [T]he 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 "imminent lawless action" test combines the most speech-protective parts of two existing tests that had been stated by the
federal courts: Justice Holmes's "clear and
present danger" test as declared in Schenck v.
United States, and Judge Learned Hand's test, stated in Masses
Publishing v. Patten: "If one stops short of urging upon others that it is their duty or their interest to resist the
law, it seems to me one should not be held to have attempted to cause its violation."
The "imminent" part of the "imminent lawless action" test came from Holmes's formulation, and the "lawless" part from Hand's.
As of 2005, the test continues to be the standard test of whether inflammatory
speech is constitutionally protected.
See also
External link
- Text of
decision (http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=395&invol=444) (at
FindLaw.com)
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