Brandenburg v. Ohio,  No. 492 Supreme Court of The United States 395 U.S. 444; 89 S. Ct. 1827; 1969 U.S. LEXIS 1367; 23 L. Ed. 2d 430; 48 Ohio Op. 2d 320

June 9, 1969, Decided

CORE TERMS: advocacy, syndicalism, First Amendment, violence, film, assembly, lawless, imminent, forbid, incitement, nigger, teach, punish, accomplishing, indictment, formed, Fourteenth Amendments, terrorism, incite, convicted, teaching, violent, industrial, assemblage, pain, protest, condemnation, unlawfully, CONSTITUTIONAL LAW, leader

FACTS:

The defendant, a leader of a Ku Klux Klan group, spoke at a Klan rally at which a large wooden cross was burned and some of the other persons present were carrying firearms. His remarks included such statements as: "Bury the niggers," "the niggers should be returned to Africa," and "send the Jews back to Israel."

An Ohio state court convicted him under Ohio's criminal syndicalism statute, both for advocating 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 assembling with any society, group, or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism. On appeal, the United States Supreme Court reversed. In a per curiam opinion, expressing the unanimous views of the court and overruling Whitney v California (1927) 274 US 357, 71 L Ed 1095, 47 S Ct 641, it was held that the constitutional guaranties of free speech and free press did not permit a state to forbid or proscribe advocacy of the use of force or of law violation, except where such advocacy was directed to inciting or producing imminent lawless action and was likely to incite or produce such action.

Black and Douglas, JJ., each concurring separately expressed disagreement with the "clear and present danger" test which had been applied in an earlier decision cited by the court.

OPINION:

The guaranties 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 for a resort to force and violence is not the same as preparing a group for violent action and steeling it to such action. Any statute which fails to draw this distinction impermissibly intrudes upon the freedoms guaranteed by the First and Fourteenth Amendments.

The First and Fourteenth Amendments' guaranties of free speech and free press preclude a conviction for violation of a state criminal syndicalism statute which punishes persons who advocate or teach the duty, necessity, or propriety of violence as a means of accomplishing industrial or political reform, or who publish or circulate or display any book or paper containing such advocacy, or who justify the commission of violent acts with intent to exemplify, spread, or advocate the propriety of the doctrines of criminal syndicalism, or who voluntarily assemble with a group formed to teach or advocate the doctrines of criminal syndicalism.

The First Amendment and Fourteenth Amendmentsí guaranty the right of peaceable assembly is a right cognate to those of free speech and free press and is equally fundamental.

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