Brandenburg v. Ohio

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Brandenburg v. Ohio
Seal of the United States Supreme Court.svg
Supreme Court of the United States
Argued February 27, 1969
Decided June 9, 1969
Full case nameClarence Brandenburg v. State of Ohio
Citations395 U.S. 444 ( more )
89 S. Ct. 1827; 23 L. Ed. 2d 430; 1969 U.S. LEXIS 1367; 48 Ohio Op. 2d 320
Case history
PriorDefendant convicted, Court of Common Pleas, Hamilton County, Ohio, (Dec. 5, 1966); affirmed without opinion, Court of Appeals of the First Appellate District of Ohio, (Feb. 16, 1968); appeal dismissed without opinion, Supreme Court of Ohio (June 12, 1968); probable jurisdiction noted, 393 U.S. 948(1968).
SubsequentNone
Holding
Ohio's criminal syndicalism statute violated the First Amendment, as applied to the state through the Fourteenth, because it broadly prohibited the mere advocacy of violence rather than the constitutionally unprotected incitement to imminent lawless action.
Court membership
Chief Justice
Earl Warren
Associate Justices
Hugo Black  · William O. Douglas
John M. Harlan II  · William J. Brennan Jr.
Potter Stewart  · Byron White
Thurgood Marshall
Case opinions
Per curiam
ConcurrenceBlack
ConcurrenceDouglas
Laws applied
U.S. Const. amends. I, XIV; Ohio Rev. Code § 2923.13
This case overturned a previous ruling or rulings

Brandenburg v. Ohio, 395 U.S. 444 (1969), is a landmark decision of the United States Supreme Court interpreting the First Amendment to the U.S. Constitution. [1] The Court held that the government cannot punish inflammatory speech unless that speech is "directed to inciting or producing imminent lawless action and is likely to incite or produce such action". [2] [3] : 702  Specifically, the Court struck down Ohio's criminal syndicalism statute, because that statute broadly prohibited the mere advocacy of violence. In the process, Whitney v. California (1927) [4] was explicitly overruled, and Schenck v. United States (1919), [5] Abrams v. United States (1919), [6] Gitlow v. New York (1925), [7] and Dennis v. United States (1951) [8] were overturned.

Contents

Background

Clarence Brandenburg, a Ku Klux Klan (KKK) leader in rural Ohio, contacted a reporter at a Cincinnati television station and invited him to cover a KKK rally that would take place in Hamilton County in the summer of 1964. [9] Portions of the rally were filmed, showing several men in robes and hoods, some carrying firearms, first burning a cross and then making speeches. One of the speeches made reference to the possibility of "revengeance" against "Niggers", "Jews", and those who supported them and also claimed that "our President, our Congress, our Supreme Court, continues to suppress the white, Caucasian race", and announced plans for a march on Congress to take place on the Fourth of July. [10] Another speech advocated for the forced expulsion of African Americans to Africa and Jewish Americans to Israel. [11]

Brandenburg was charged with advocating violence under Ohio's criminal syndicalism statute for his participation in the rally and for the speech he made. In relevant part, the statute – enacted in 1919 during the First Red Scare – proscribed "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 "voluntarily assembl[ing] with any society, group or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism".

Convicted in the Court of Common Pleas of Hamilton County, Brandenburg was fined $1,000 and sentenced to one to ten years in prison. On appeal, the Ohio First District Court of Appeal affirmed Brandenburg's conviction, rejecting his claim that the statute violated his First Amendment and Fourteenth Amendment right to freedom of speech. The Supreme Court of Ohio dismissed his appeal without opinion.

Although Yates v. United States (1957) [12] had overturned the convictions of mid-level Communist Party members in language that seemed suggestive of a broader view of freedom of expression rights than had been accorded them in Dennis v. United States (1951), [8] all Yates purported to do was construe a federal statute, the 1940 Smith Act. Thus, Dennis's reading of the First Amendment remained in force: advocacy of law violation, even as an abstract doctrine, could be punished under law consistent with the free speech clause.

Decision

The U.S. Supreme Court reversed Brandenburg's conviction, holding that government cannot constitutionally punish abstract advocacy of force or law violation. The majority opinion was per curiam , issued from the Court as an institution, rather than as authored and signed by an individual justice. The earlier draft had originally been prepared by Justice Abe Fortas before he was forced to resign in the midst of an ethics scandal, and it would have included a modified version of the clear and present danger test. In finalizing the draft, Justice Brennan eliminated all references to it by substituting the "imminent lawless action" language. [13] Justices Black and Douglas concurred separately.

Per curiam opinion

The per curiam majority opinion struck down the Ohio Criminal Syndicalism statute, overruled Whitney v. California (1927), [4] and articulated a new test – the "imminent lawless action" test – for judging what was then referred to as "seditious speech" under the First Amendment:

Whitney has been thoroughly discredited by later decisions. See Dennis v. United States , 341 U.S. 494, at 507 (1951). 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. [14]

In Schenck v. United States (1919) [5] the Court had adopted a "clear and present danger" test that Whitney v. California (1927) subsequently expanded to a "bad tendency" test: if speech has a "tendency" to cause sedition or lawlessness, it may constitutionally be prohibited. Dennis v. United States (1951), a case dealing with prosecution of alleged Communists under the Smith Act for advocating the overthrow of the government, used the clear and present danger test while still upholding the defendants' convictions for acts that could not possibly have led to a speedy overthrow of the government.

The per curiam opinion cited Dennis v. United States (1951) as though it were good law and amenable to the result reached in Brandenburg. However, Brandenburg completely did away with Dennis's central holding and held that "mere advocacy" of any doctrine, including one that assumed the necessity of violence or law violation, was per se protected speech. It may be that principles of stare decisis figured in the Court's decision to avoid overruling the relatively recent Dennis, but the distance between the two cases' approach is obvious and irreconcilable.[ citation needed ]

The Brandenburg test (also called the "imminent lawless action" test)

The three distinct elements of this test (intent to speak, imminence of lawlessness, and likelihood of lawlessness) have distinct precedential lineages.

Judge Learned Hand was possibly the first judge to advocate the intent standard, in Masses Publishing Co. v. Patten (1917), [15] reasoning that "[i]f one stops short of urging upon others that it is their duty or their interest to resist the law, it seems to me one should not be held to have attempted to cause its violation". However, the Brandenburg intent standard is more speech-protective than Hand's formulation, which contained no temporal element of imminence. [13]

The imminence element was a departure from earlier rulings. Brandenburg did not explicitly overrule the bad tendency test, but it appears that after Brandenburg, the test is de facto overruled. The Brandenburg test effectively made the time element of the clear and present danger test more defined and more rigorous. [13] Applying the Brandenburg test in Hess v. Indiana (1973) the Supreme Court held that the prerequisite for speech which is not protected by the First Amendment is that the speech in question must lead to “imminent disorder”. [16]

Concurrences

Justice Hugo Black, renowned civil libertarian and First Amendment absolutist, filed a short concurrence indicating his agreement with Justice William O. Douglas's longer opinion and pointing out that the per curiam's reliance on Dennis was more symbolic than actual.

Justice Douglas's concurrence reflected the absolutist position that only he and Black, among Supreme Court justices, ever fully subscribed to, namely that the phrase "no law" in the First Amendment ought to be interpreted very literally, and that all speech is immune from prosecution, regardless of the governmental interests advanced in suppressing some particular instance of speech. He briefly traced the history of the "clear and present danger" test, illustrating how it had been used over the years since its debut in Schenck to dismiss dozens of what Douglas viewed as legitimate First Amendment claims.

A short section of Douglas's opinion indicated that he might be open to allowing the government greater latitude in controlling speech during time of "declared war" (making clear that he was not referring to the then-current Vietnam War), although he only phrased that possibility in terms of doubt (as opposed to his certainty that the clear and present danger test was irreconcilable with the First Amendment during time of peace).

Douglas also argued for the legitimate role of symbolic speech in First Amendment doctrine, using examples of a person ripping up a Bible to celebrate the abandonment of his faith or tearing a copy of the Constitution in order to protest a Supreme Court decision, and assailed the previous term's United States v. O'Brien , [17] which had allowed for the prosecution of a man for burning his draft card. In all these situations, Douglas argued, an action was a vital way of conveying a certain message, and thus the action itself deserved First Amendment protection.

Finally, Douglas dealt with the classic example of a man "falsely shouting fire in a theater and causing a panic". In order to explain why someone could be legitimately prosecuted for this, Douglas called it "a classic case where speech is brigaded with action". In the view of Douglas and Black, this was probably the only sort of case in which a person could be prosecuted for speech. [18]

Subsequent developments

The Brandenburg test was the Supreme Court's last major statement on what government may do about inflammatory speech that seeks to incite others to lawless action. It resolved the debate between those who urged greater government control of speech for reasons of security and those who favored allowing as much speech as possible and relying on the marketplace of ideas to reach a favorable result, leaving the law in a state along the lines of that which Justices Louis Brandeis, and, post-Schenck, Oliver Wendell Holmes advocated in several dissents and concurrences during the late 1910s and early 1920s.

The Brandenburg test remains the standard used for evaluating attempts by the government to punish inflammatory speech, and it has not been seriously challenged since it was laid down in 1969. Very few cases have actually reached the Court during the past decades that would test the outer limits of Brandenburg. The most significant application of Brandenburg came four years after in Hess v. Indiana . [19]

Brandenburg has received praise by legal scholars for establishing this framework. Gerald Gunther, a prominent constitutional law scholar, proclaimed the decision as the "clearest and most protective standard under the first amendment." [20] Additionally, American jurist Harry Kalven, Jr., described Brandenburg as making the First Amendment "finally have worked itself pure." [21]

Brandenburg has come under criticism in the twenty-first century. Lyrissa Lidsky, a scholar of the law, stated that "Brandenburg's sanguine attitude toward the prospect of violence rests on an assumption about the audiences of radical speech. Brandenburg assumes that most citizens ... simply are not susceptible to impassioned calls to violent action by radical speakers." [22] It has also become more common for lower federal courts to apply the test loosely, especially in circumstances related to online terrorist recruitment. [23]

The Washington Post reported the Brandenburg precedent to be "at the center" of the second impeachment trial of Donald Trump. [24]

See also

Related Research Articles

<span class="mw-page-title-main">Clear and present danger</span> Free speech doctrine in US constitutional law

Clear and present danger was a doctrine adopted by the Supreme Court of the United States to determine under what circumstances limits can be placed on First Amendment freedoms of speech, press, or assembly. The test was replaced in 1969 with Brandenburg v. Ohio's "imminent lawless action" test.

<span class="mw-page-title-main">Fighting words</span> Speech or writing intended to incite hatred or violence

Fighting words are spoken words directed to the person of the hearer which would have a tendency to cause acts of violence by the person to whom, individually, the remark is addressed. The term fighting words describes words that when uttered inflict injury or tend to incite an immediate breach of the peace.

Schenck v. United States, 249 U.S. 47 (1919), was a landmark decision of the U.S. Supreme Court concerning enforcement of the Espionage Act of 1917 during World War I. A unanimous Supreme Court, in an opinion by Justice Oliver Wendell Holmes Jr., concluded that Charles Schenck, who distributed flyers to draft-age men urging resistance to induction, could be convicted of an attempt to obstruct the draft, a criminal offense. The First Amendment did not protect Schenck from prosecution, even though, "in many places and in ordinary times, Schenck, in saying all that was said in the circular, would have been within his constitutional rights. But the character of every act depends upon the circumstances in which it is done." In this case, Holmes said, "the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent." Therefore, Schenck could be punished.

Dennis v. United States, 341 U.S. 494 (1951), was a United States Supreme Court case relating to Eugene Dennis, General Secretary of the Communist Party USA. The Court ruled that Dennis did not have the right under the First Amendment to the United States Constitution to exercise free speech, publication and assembly, if the exercise involved the creation of a plot to overthrow the government. In 1969, Dennis was de facto overruled by Brandenburg v. Ohio.

Whitney v. California, 274 U.S. 357 (1927), was a United States Supreme Court decision upholding the conviction of an individual who had engaged in speech that raised a threat to society. Whitney was explicitly overruled by Brandenburg v. Ohio in 1969.

Gitlow v. New York, 268 U.S. 652 (1925), was a landmark decision of the United States Supreme Court holding that the Fourteenth Amendment to the United States Constitution had extended the First Amendment's provisions protecting freedom of speech and freedom of the press to apply to the governments of U.S. states. Along with Chicago, Burlington & Quincy Railroad Co. v. City of Chicago (1897), it was one of the first major cases involving the incorporation of the Bill of Rights. It was also one of a series of Supreme Court cases that defined the scope of the First Amendment's protection of free speech and established the standard to which a state or the federal government would be held when it criminalized speech or writing.

Abrams v. United States, 250 U.S. 616 (1919), was a decision by the Supreme Court of the United States upholding the 1918 Amendment to the Espionage Act of 1917 which made it a criminal offense to urge the curtailment of production of the materials necessary to wage the war against Germany with intent to hinder the progress of the war. The 1918 Amendment is commonly referred to as if it were a separate Act, the Sedition Act of 1918.

Chaplinsky v. New Hampshire, 315 U.S. 568 (1942), was a landmark decision of the US Supreme Court in which the Court articulated the fighting words doctrine, a limitation of the First Amendment's guarantee of freedom of speech.

"Imminent lawless action" is one of several legal standards American courts use to determine whether certain speech is protected under the First Amendment of the United States Constitution. The standard was first established in 1969 in the United States Supreme Court case Brandenburg v. Ohio.

"Shouting fire in a crowded theater" is a popular analogy for speech or actions whose principal purpose is to create panic, and in particular for speech or actions which may for that reason be thought to be outside the scope of free speech protections. The phrase is a paraphrasing of a dictum, or non-binding statement, from Justice Oliver Wendell Holmes Jr.'s opinion in the United States Supreme Court case Schenck v. United States in 1919, which held that the defendant's speech in opposition to the draft during World War I was not protected free speech under the First Amendment of the United States Constitution. The case was later partially overturned by Brandenburg v. Ohio in 1969, which limited the scope of banned speech to that which would be directed to and likely to incite imminent lawless action.

<i>Masses Publishing Co. v. Patten</i> 1917 federal district court case in First Amendment law

Masses Publishing Co. v. Patten, 244 F. 535, was a decision by the United States District Court for the Southern District of New York, that addressed advocacy of illegal activity under the First Amendment.

Feiner v. New York, 340 U.S. 315 (1951), was a United States Supreme Court case involving Irving Feiner's arrest for a violation of section 722 of the New York Penal Code, "inciting a breach of the peace," as he addressed a crowd on a street.

In United States law, the bad tendency principle was a test that permitted restriction of freedom of speech by government if it is believed that a form of speech has a sole tendency to incite or cause illegal activity. The principle, formulated in Patterson v. Colorado (1907), was seemingly overturned with the "clear and present danger" principle used in the landmark case Schenck v. United States (1919), as stated by Justice Oliver Wendell Holmes Jr. Yet eight months later, at the start of the next term in Abrams v. United States (1919), the Court again used the bad tendency test to uphold the conviction of a Russian immigrant who published and distributed leaflets calling for a general strike and otherwise advocated revolutionary, anarchist, and socialist views. Holmes dissented in Abrams, explaining how the clear and present danger test should be employed to overturn Abrams' conviction. The re-emergence of the bad tendency test resulted in a string of cases after Abrams employing that test, including Whitney v. California (1927), where a woman was convicted simply because of her association with the Communist Party. The court ruled unanimously that although she had not committed any crimes, her relationship with the Communists represented a "bad tendency" and thus was unprotected. The "bad tendency" test was finally overturned in Brandenburg v. Ohio (1969) and was replaced by the "imminent lawless action" test.

Terminiello v. City of Chicago, 337 U.S. 1 (1949), was a case in which the Supreme Court of the United States held that a "breach of peace" ordinance of the City of Chicago that banned speech that "stirs the public to anger, invites dispute, brings about a condition of unrest, or creates a disturbance" was unconstitutional under the First and Fourteenth Amendments to the United States Constitution.

In the United States, criminal anarchy is the crime of conspiracy to overthrow the government by force or violence, or by assassination of the executive head or of any of the executive officials of government, or by any unlawful means. The advocacy of such doctrine either by word of mouth or writing is a felony in many U.S. states. Circa 1955, the United States Solicitor General said that forty-two States plus Alaska and Hawaii had statutes which in some form prohibited advocacy of the violent overthrow of established government.

<span class="mw-page-title-main">United States free speech exceptions</span> Categories of free speech not protected by the First Amendment

In the United States, some categories of speech are not protected by the First Amendment. According to the Supreme Court of the United States, the U.S. Constitution protects free speech while allowing limitations on certain categories of speech.

Advocacy and incitement are two categories of speech, the latter of which is a more specific type of the former directed to producing imminent lawless action and which is likely to incite or produce such action. In the 1957 case Yates v. United States, Justice John Marshall Harlan II ruled that only advocacy that constituted an "effort to instigate action" was punishable.

Hess v. Indiana, 414 U.S. 105 (1973), was a United States Supreme Court case involving the First Amendment that reaffirmed and clarified the imminent lawless action test first articulated in Brandenburg v. Ohio (1969). Hess is still cited by courts to protect speech threatening future lawless action.

Hate speech in the United States cannot be directly regulated by the government due to the fundamental right to freedom of speech protected by the Constitution. While "hate speech" is not a legal term in the United States, the U.S. Supreme Court has repeatedly ruled that most of what would qualify as hate speech in other western countries is legally protected speech under the First Amendment. In a Supreme Court case on the issue, Matal v. Tam (2017), the justices unanimously reaffirmed that there is effectively no "hate speech" exception to the free speech rights protected by the First Amendment and that the U.S. government may not discriminate against speech on the basis of the speaker's viewpoint.

Spence v. Washington, 418 U.S. 405 (1974), was a United States Supreme Court case dealing with non-verbal free speech and its protections under the First Amendment. The Court, in a per curiam decision, ruled that a Washington state law that banned the display of the American flag adorned with additional decorations was unconstitutional as it violated protected speech. The case established the Spence test that has been used by the judicial system to determine when non-verbal speech may be sufficiently expressive for First Amendment protections.

References

  1. ↑ Brandenburg v. Ohio, 395 U.S. 444 (1969).
  2. ↑ Parker, Richard A. (2003). "Brandenburg v. Ohio". In Parker, Richard A. (ed.). Free Speech on Trial: Communication Perspectives on Landmark Supreme Court Decisions. Tuscaloosa, Alabama: University of Alabama Press. pp. 145–159. ISBN   978-0-8173-1301-2.
  3. ↑ Criminal Law - Cases and Materials, 7th ed. 2012, Wolters Kluwer Law & Business; John Kaplan (law professor), Robert Weisberg, Guyora Binder, ISBN   978-1-4548-0698-1
  4. 1 2 Whitney v. California , 274 U.S. 357 (1927).
  5. 1 2 Schenck v. United States , 249 U.S. 47 (1919).
  6. ↑ Abrams v. United States , 250 U.S. 616 (1919).
  7. ↑ Gitlow v. New York , 268 U.S. 652 (1925)
  8. 1 2 Dennis v. United States , 341 U.S. 494 (1951)
  9. ↑ Steve Kissing, "Brandenburg v. Ohio", Cincinnati Magazine, August 2001, pp. 14-15.
  10. ↑ Quoted in per curiam decision. Brandenburg v. Ohio. Documents of American Constitutional and Legal History, edited by Urofsky and Finkelman, Oxford University Press, 2002, p. 784.
  11. ↑ Per curiam decision. Brandenburg v. Ohio. Documents of American Constitutional and Legal History, p. 784.
  12. ↑ Yates v. United States , 354 U.S. 298 (1957).
  13. 1 2 3 See Schwartz, Bernard (1995). "Holmes Versus Hand: Clear and Present Danger or Advocacy of Unlawful Action?". Supreme Court Review. 1995: 237–240.
  14. ↑ Brandenburg, 395 U.S. at 447-48.
  15. ↑ Masses Publishing Co. v. Patten, 244 F. 535 (S.D.N.Y. 1917)
  16. ↑ Vile, John R. "Incitement to Imminent Lawless Action". The First Amendment Encyclopedia presented by the John Seigenthaler Chair of Excellence in First Amendment Studies. Archived from the original on February 10, 2021. Retrieved February 10, 2021.
  17. ↑ United States v. O'Brien , 391 U.S. 367 (1968).
  18. ↑ Clarence BRANDENBURG v. State of OHIO | Supreme Court | US Law | Cornell LII / Legal Information Institute
  19. ↑ Hess v. Indiana , 414 U.S. 105 (1973)
  20. ↑ Gunther, Gerald (1975). "Learned Hand and the Origins of Modern First Amendment Doctrine: Some Fragments of History". Stanford Law Review. 27 (3): 719–773. doi:10.2307/1228336. ISSN   0038-9765.
  21. ↑ Kalven, Harry (Winter 1973). "Ernst Freund and the First Amendment Tradition".
  22. ↑ Lyrissa B. Lidsky, Incendiary Speech and Social Media, 44 TEX. TECH L. REV. 147, 160 (2011).
  23. ↑ Sherman, Michael (2019). "Brandenburg v. Twitter" (PDF). Civil Rights Law Journal. 28 (2): 128–202.
  24. ↑ Rosenwald, Michael S. (February 12, 2021). "The landmark Klan free-speech case behind Trump's impeachment defense". The Washington Post. Retrieved June 15, 2022.
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