Brandenburg v. Ohio (1969)
Background
Clarence Brandenburg was a leader of the Ku Klux Klan in rural Ohio. Brandenburg
spoke at a KKK rally that was taped by a Cincinnati news station. The speech contained
racial slurs and urged violence against African Americans and Jews. Brandenburg was
later arrested for advocating violence and convicted under Ohio’s Criminal Syndicalism
Act. This statute outlawed speech that advocated the use of violence as a means to social
reform. An Ohio appellate court later affirmed Brandenburg’s conviction, and the Ohio
Supreme Court dismissed his appeal.
Constitutional Issue
Was Brandenburg’s conviction under Ohio’s Criminal Syndicalism Act a violation of
his First Amendment rights? To what extent does the First Amendment protect a person’s
speech?
The Court’s Decision
On June 9, 1969, the Court voted unanimously in favor of Brandenburg. The decision
concluded that a state cannot constitutionally punish someone for speech that advocates
the use of force or other illegal actions unless it is “directed at inciting or producing
imminent lawless action” or is “likely to incite or produce such action.” As a result, the
Ohio Criminal Syndicalism Act was ruled unconstitutional, and the case of Whitney v.
California, which had previously upheld the act, was overruled. The Brandenburg
decision greatly expanded what is considered acceptable political speech in the United
States.
Questions for Analysis and Debate
1. At what point does a person’s speech lose its protection under the First Amendment?
2. Even though we have the right to say almost anything we want, there are still
consequences for the words we speak. Can you think of an occasion when someone in the
media or in government lost his or her job for something he or she said?
3. Choose a side in this case. Choose to argue for Clarence Brandenburg or for the state of
Ohio. After you choose a side, write a list of arguments for your side of the case. As a
class, choose sides and debate this issue. Was the Ohio Criminal Syndicalism Act a good
idea? Should people be allowed to say whatever they want, even if their words hurt
others?