Brandenburg v. Ohio

Facts

A man identified at trial as Brandenburg, a leader of a Ku Klux Klan group, telephoned an announcer-reporter at a Cincinnati television station and invited him to a Klan rally at a farm in Hamilton County. With the organizers' cooperation, the reporter and a cameraman attended and filmed the events. One film showed 12 hooded figures, some carrying firearms, gathered around a large wooden cross, which they burned. No one was present except the participants and the newsmen. Brandenburg, in Klan regalia, made a speech. He said the Klan was not a revengent organization, but that if the President, Congress and Supreme Court continued to suppress the white, Caucasian race, there might have to be some revengeance taken. He also announced a march on Congress on July the Fourth. A second film showed six hooded figures. In it Brandenburg repeated a very similar speech, without the revengeance reference, and added one sentence saying Black people should be returned to Africa and Jews to Israel. Some figures carried weapons; the speaker did not. The prosecution's case rested on the films and on testimony identifying Brandenburg as the caller and the speaker. The State also introduced articles seen in the film, including guns, a Bible and a red hood. Brandenburg was convicted under Ohio's Criminal Syndicalism statute of advocating violence as a means of industrial or political reform and of voluntarily assembling with a group formed to advocate criminal syndicalism. He was fined $1,000 and sentenced to one to 10 years’ imprisonment.

Issues

1. Do the constitutional guarantees of free speech and free press permit a State to forbid advocacy of the use of force or of law violation unless the advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action?
2. Does Ohio's Criminal Syndicalism statute violate the First and Fourteenth Amendments when, by its own words and as applied, it punishes mere advocacy and assembly with a group formed to advocate the doctrines of criminal syndicalism, without distinguishing advocacy from incitement to imminent lawless action?

Holding

Ohio's statute, by its own words and as applied, punished mere advocacy and forbade assembly with others merely to advocate the described type of action. Neither the indictment nor the jury instructions narrowed the crime to incitement to imminent lawless action. The statute therefore falls within the condemnation of the First and Fourteenth Amendments, Brandenburg's conviction is reversed, and Whitney v. California is overruled.