Brandenburg v. Ohio

Brandenburg v. Ohio, 395 U.S. 444 (1969), is a landmark decision of the United States Supreme Court.

Clarence Brandenburg, a Ku Klux Klan leader, was convicted under Ohio’s Criminal Syndicalism Act for making a speech at a Klan rally that advocated ‘revengeance’ against the government. The speech was filmed and broadcast on television. Brandenburg argued the conviction violated the First Amendment.

Significance

The per curiam opinion overturned Whitney v. California and established the modern test for incitement. Speech advocating the use of force or illegal action is protected unless (1) it is ‘directed to inciting or producing imminent lawless action’ and (2) it is ’likely to incite or produce such action.’ This ‘imminent lawless action’ test provides the strongest protection for inflammatory speech in American history and is the current governing standard for incitement claims.

Category

US Federal Case Law