Brandenburg v. Ohio
395 U.S. 444 (1969)

  • Ohio had a law (the Criminal Syndicalism Statute) that made it illegal to advocate “crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform.”
  • Brandenburg, who was a member of the Ku Klux Klan, gave a speech at a rally. He was convicted of violating the law and sentenced to prison. He appealed.
    • Brandenburg argued that the law was unconstitutional since it infringed on his 1st Amendment right to freedom of speech.
  • The US Supreme Court overturned the conviction and found the law to be unconstitutional.
    • Instead of applying the clear and present danger test (see Schenck v. United States (249 U.S. 47 (1919))), the reasonableness approach (see Gitlow v. New York (268 U.S. 652 (1925))), or the risk formula approach (Dennis v. United States (341 U.S. 494 (1951)) to determine if the speech should be protected, the Court came up with a new test.
    • The new test the Court formulated with this decision (the Brandenburg Test (aka the imminent lawless action test)) asks a two pronged question:
      • Is the speech, “directed at inciting or producing imminent lawless action?” and,
      • Is the speech is “likely to incite or produce such action?”
    • In this case, the Court found that the Ohio law did not distinguish between speech that is likely to incite lawless action, and speech that was not likely to incite lawless action. Therefore it is overbroad and unconstitutional.
  • This new Brandenburg Test is the most speech-protective test that the Court has used, and is the current test for 1st Amendment cases.
    • It isn’t called strict scrutiny, but it is comparable to strict scrutiny.