Brandenburg v. Ohio: Public Speech Advocating Illegal Activities, Ohio Criminal Syndicalism Law (06/09/1969)


Brandenburg v. Ohio

Did Ohio’s criminal syndicalism law, prohibiting public speech that advocates various illegal activities, infringe upon Brandenburg’s right to free speech as protected by the First and Fourteenth Amendments?

Argued: 02/27/1969

Decision Date: 06/09/1969

Decision Record: 8-0; yes

Justices Majority: Earl Warren, Byron White, Hugo Black, John Harlan, Potter Stewart, Thurgood Marshall, William Brennan, William Douglas

Justices Dissenting: None

Effect of the Decision

This case clarified two conditions that must be satisfied when evaluating speech acts:  (1) speech can be prohibited if it is “directed at inciting or producing imminent lawless action” and (2) it is “likely to incite or produce such action.”

In Favor

In the representation of the side of the Brandenburg, attorney Allen Brown said, “We have before us case arising in the State of Ohio under a conviction under Ohio’s Criminal Syndicalism Act.

We have indeed before us something of rarity.

It is as far as I know a third case ever tried under Ohio’s Criminal Syndicalism Act and the first to ever reach the appellate level.

There was earlier in Ohio when their peculiar proceedings in which a prosecutor could bring a proceeding before the Supreme Court on appeal for a question of law only.

A proceeding in which — a motion was made in the lower court in Ohio, attacking the constitutionality of Ohio’s Criminal Syndicalism Law.

The lower court in Ohio held the law to be unconstitutional.

It was appealed to the Supreme Court in State versus Kassay and in what is basically in advisory opinion.

The Court stated that it was constitutional.

If the Court also stated several engaging other things.

It stated that the First Amendment did not apply to the states of the union.

It also stated that the measure of its application was an issue in its constitutionality and it would attend the first trial of a case to see what is the proper measure of its application.

The Court waited patiently for the first application to a case that arose some 40 years later in this case and surprisingly despite the invitation here sent out in Kassay, the Court declined to even hear his constitutional question on the application in this case.

It in fact defaulted to this Court, Ohio’s privilege are setting forth the limitations of the application of its statute.

Ohio’s privileges are setting forth potentiality of clarification and delineation of a statute which obviously on its face rushes head long into the First Amendment.

These are the facts in this case.

A television reporter receives a telephone call indicating that if he wanted to he could come and take movies of a Ku Klux Klan meeting.

He came.

He met some hooded figures and arrangements were made for the taking of a movie.

A movie was taken in which a cross was burned, some figures milled about, and yelled some stupid and rather, a senseless slogans and then a single figure was panned on, and he made a speech, a speech full of conditions, precedents, and reservations, hyperbola self-evidently stupid and silly.

He asserted that the clan was the largest organization in the State of Ohio.

He then went on in a — with a condition precedent that if the various branch is the Government including this Court, do not mend their ways that revengeance, a word of his own coining I assume would be taken.

He did not specify the revengeance and we do not know what particular aspect of the democratic process he was going to involve himself in revengeance.

He then spoke of a March not in identifying it as an armed march or any sort of march of any force or violence into Washington and then into two southern states, incidentally, raising federal questions perhaps rather than internal state questions.”


Then in opposition, representing the state of Ohio, attorney Leonard Kirschner claimed, “I do not know why the film is not here at the present time.

I do know that I — well that’s I did know where it was as of two months ago.

I viewed it subsequent to the Supreme Court of Ohio hearings and it’s in the clerk’s office of the Clerk of the Hamilton County, Court of Common Pleas in his possession, locked up in a file, fireproof file I might add and I don’t know why it is not here.

I’m certain that it can be forwarded to this Court for examination.

I will never to follow through on the Court’s request.

The Court’s permission as I take it basically there are two points involved in this case.

One, is the Ohio Statute on Criminal Syndicalism and two, the evidence that was presented to a judge and jury upon which a finding and verdict of guilty was returned.

Now, counsel, I believe that the Ohio Criminal Syndicalism law is constitutional.

I have cited various authorities relative to my beliefs in this matter in my brief.

I believe that the basic matter before this Court is the application of the evidence as was presented to the jury to determine whether or not there was sufficient evidence upon which a jury could return a verdict.

I believe that in this case when counsel says sending the Jews back to Israel, let’s give them back to the dark garden that this might not involved violence.

I would like him perhaps in his reply to explain how the statement, “Bury the niggers” would not constitute a violent form of actions.

Now in this case, there is two basic parts of the film.

One, that was taken inside of a room in which the defendant Clarence Brandenburg was identified and I don’t believe there is any question or any in the record either between the appellant and the appellee in this matter relative to his identification as he being the person saying, this is an organizer’s meeting we have had quite a few members here today which are we have had hundred — hundreds of members throughout the state and so forth.

Then there is a second portion of the film in which a group of people are walking or marching around a burning cross, hooded, armed, shouting profanities in which there is a question whether or not the defendant himself said the words as attributed to him in the transcript and on page 5.

‘How far is the nigger going to — yeah.’

‘Send the Jews back to Israel’ and so forth with the other profanities.

There is some evidence in the transcript itself which could indicate as a jury sitting and listening in that the defendant himself made one or more of these statements, and I apologize to the Court for not having this as part of my brief.

I notified counsel of the possibility of my bringing this matter up.

Ohio has a section in its code.

Ohio Revised Code Section 1.17 which provides, whoever aids, abets, or procures another to commit an offense may be prosecuted as if he were the principal offender.

We have a group of people marching around as an organizer’s meeting toward the acts of violence and in that they had attributed and desired the suppression of the Negro.”


The opinion in this case was unanimous. The opinion said, “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. Appeal was taken to this Court, and we noted probable jurisdiction.

The record shows that a man, identified at trial as the appellant, telephoned an announcer-reporter on the staff of a Cincinnati television station and invited him to come to a Ku Klux Klan “rally” to be held at a farm in Hamilton County. With the cooperation of the organizers, the reporter and a cameraman attended the meeting and filmed the events. Portions of the films were later broadcast on the local station and on a national network.

The prosecution’s case rested on the films and on testimony identifying the appellant as the person who communicated with the reporter and who spoke at the rally. The State also introduced into evidence several articles appearing in the film, including a pistol, a rifle, a shotgun, ammunition, a Bible, and a red hood worn by the speaker in the films.

One film showed 12 hooded figures, some of whom carried firearms. They were gathered around a large wooden cross, which they burned. No one was present other than the participants and the newsmen who made the film. Most of the words uttered during the scene were incomprehensible when the film was projected, but scattered phrases could be understood that were derogatory of Negroes and, in one instance, of Jews. Another scene on the same film showed the appellant, in Klan regalia, making a speech. The speech, in full, was as follows:

This is an organizers’ meeting. We have had quite a few members here today which are — we have hundreds, hundreds of members throughout the State of Ohio. I can quote from a newspaper clipping from the Columbus, Ohio, Dispatch, five weeks ago Sunday morning. The Klan has more members in the State of Ohio than does any other organization. We’re not a revengent organization, but if our President, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, it’s possible that there might have to be some revengeance taken.

We are marching on Congress July the Fourth, four hundred thousand strong. From there, we are dividing into two groups, one group to march on St. Augustine, Florida, the other group to march into Mississippi. Thank you.

The second film showed six hooded figures one of whom, later identified as the appellant, repeated a speech very similar to that recorded on the first film. The reference to the possibility of ‘revengeance’ was omitted, and one sentence was added: “Personally, I believe the nigger should be returned to Africa, the Jew returned to Israel.” Though some of the figures in the films carried weapons, the speaker did not.

The Ohio Criminal Syndicalism Statute was enacted in 1919. From 1917 to 1920, identical or quite similar laws were adopted by 20 States and two territories. E. Dowell, A History of Criminal Syndicalism Legislation in the United States 21 (1939). In 1927, this Court sustained the constitutionality of California’s Criminal Syndicalism Act, Cal.Penal Code §§ 11400-11402, the text of which is quite similar to that of the laws of Ohio. Whitney v. California. The Court upheld the statute on the ground that, without more, “advocating” violent means to effect political and economic change involves such danger to the security of the State that the State may outlaw it. Cf. Fiske v. Kansas. But Whitney has been thoroughly discredited by later decisions.. These 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. As we  said in Noto v. United States,

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. 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. The Act 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.’ Neither the indictment nor the trial judge’s instructions to the jury in any way refined the statute’s bald definition of the crime in terms of mere advocacy not distinguished from incitement to imminent lawless action.

Accordingly, 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 contrary teaching of Whitney v. California, supra, cannot be supported, and that decision is therefore overruled.”

My Opinion:

In this case, I disagree with the majority opinion. I personally don’t understand their decision. Ohio’s criminal syndicalism prohibitted public speech that advocated various illegal activities, and Brandenburg violated this by giving a speech in a Ky Klux Klan meeting, which encouraged violent behavior. If not for Ohio’s syndicalism or the two conditions established by the court:  (1) speech can be prohibited if it is “directed at inciting or producing imminent lawless action” and (2) it is “likely to incite or produce such action”, then Brandenburg’s rights may have been infringed upon. However, Ohio’s criminal syndicalism and the two requirements used when evaluating a speech act are akin to one another. Brandenburg’s speech was to promote “imminent lawless action.” This violates both the requirements of the court and Ohio’s criminal syndicalism. Therefore, Brandenburg’s rights were not violated, due to these exceptions.

*Justice Leaning L=Left, LC=Left of Center, C=Center, RC=Right of Center, R=Right

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