Brandenburg v. Ohio

395 U.S. 444 (1969)

Per Curiam Opinion

Brandenburg defines modern Court doctrine around incitement to violence in the context of political advocacy. The case famously concerned the conviction of a Ku Klux Klan leader under the Ohio Criminal Syndicalism Act – a law similar to the statutes at issue in Whitney. In reversing his conviction, the unanimous Court also formally overruled Whitney.

The Court summarized its test in this way:

“[Our] later decisions 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. ‘[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.” A statute which fails to draw this distinction impermissibly intrudes upon the freedoms guaranteed by the First and Fourteenth Amendments.”

Although the Court did not formally overrule Dennis, Justice Douglas wrote separately to express his view that Dennis had “twisted and perverted” the doctrine to “make the trial of those teachers of Marxism as all-out political trial which was part and parcel of the cold war that has eroded substantial parts of the Fist Amendment.” Douglas, of course, had moral authority here since he had presciently dissented in Dennis.

USEFUL LINKS

CourtListener (full opinion text)

Oyez (summary + lineups + oral argument)

Supreme Court Database (more detail)

Wikipedia (summary + links)