Brandenburg v. Ohio
The Story:
An Ohio Statute that limited free speech in America led to the arrest of a man who called for violence. In the city of Cincinnati, Ku Klux Klan members held a rally that was reported on the news. One of the KKK members, named Clarence Brandenburg, gave a controversial speech that targeted the government. He claimed that “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 [sic] taken.” Brandenburg was arrested due to the Ohio Criminal Syndicalism Statute, which prohibited “advocating the duty, necessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform.” Brandenburg’s use of the word “revengeance” combined with his implied call for acting against the government, led him to be arrested under the Ohio statute in 1967. In response, Brandenburg sued, arguing that Ohio’s statute violated his First Amendment right to free speech.
The Breakdown:
The court had to decide whether violent speech was protected under the First Amendment. Both sides in this case argued by referencing the standard for speech that the court had at the time, which was the clear and present danger test. This test originated from the case Schenck v. the United States, in which the Court held that the government had the right to prevent speech if the speaker created a clear and present danger. There were two prongs within the test; the Court would be tasked with determining whether the speech caused a threat, and whether that threat was a real danger to US citizens.
Brandenburg’s attorneys argued that even if his speech defended the use of violence, ultimately, there was no clear or immediate danger to the public. No one had acted on Brandenburg’s words calling for action against the government. Thus, Brandenburg’s speech would fail the clear and present danger test. In contrast, the state of Ohio argued that Brandenburg was deliberately attempting to cause violence against the government. To put it simply, he was creating a clear and present danger because he was advocating for revenge. Ohio also argued they were justified in arresting Brandenburg because the KKK had a history of violence; if the group was allowed to continue with their speech, a threat to public order and safety could have ensued.
The Unanimous Majority Opinion:
In a unanimous per-curiam decision, the Supreme Court sided with Brandenburg and created a new standard for violent speech. The significance of the decision being per-curiam was that the court spoke as a unified institution, rather than through an individual justice only. The court’s main argument in Brandenburg v. Ohio was that the Ohio Criminal Syndicalism Act was unconstitutional because it did not make a distinction between mere advocacy and whether the speech was intended to produce imminent lawless action. On that note, the court explained, “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 Court further developed the Brandenburg test, which has two requirements. First, the Court must establish whether the person had the intention to incite imminent lawless action in other people. Second, the Court must assess whether the speech was likely to cause imminent lawless action. To be convicted, the person who said the speech must meet both extremely high standards.
The Court intentionally crafted this demanding standard to ensure that freedom of speech received robust constitutional protection. The word “imminent” in this case is a demanding standard, as it calls for evidence of an intent to act immediately. By emphasizing the word “imminent,” the Court clarifies that lawless actions that happen in the distant future are protected speech. The Court further concludes that when regulating speech, a statute that doesn’t distinguish teaching and advocacy is unconstitutional. Advocacy, or speech that doesn’t impose imminent danger in any way, is constitutionally protected.
To understand the significance of the Brandenburg test, it is necessary to analyze the previous clear and present danger test that the Court used. The problem with the clear and present danger test was that it allowed courts to suppress speech based on speculation. The standard required Courts to speculate about future actions and whether one could reasonably draw the line from a speech to a threat. In short, before Brandenburg, concrete evidence of imminent action wasn’t considered. Through Brandenburg, the Court rejected the clear and present danger test, and formed a more exacting standard.
The Significance:
Brandenburg is significant in its own time because during the 1960s, there were multiple contentious issues surrounding speech. The Vietnam War, Civil Rights, and the beginning of counterculture all found their prevalence in society through speech. During this time, the state governments often sought to uphold public order by passing laws that limited unpopular free speech. Through Brandenburg, the people were able to protect their right to free speech against further government intervention. By limiting the circumstances under which speech could be punished, the Court helped to protect the freedoms of the First Amendment for future Americans. However, the Court wasn’t just focused on curtailing abuses of power by the government; the Court was also focused on correcting past errors in precedent. By rejecting earlier precedents that were guided by fear and speculation, the Court created a bar that most controversial speech never reaches. Brandenburg still shapes American society today, from campus protests to intense political debates, to online speech. Even government attempts to restrict social media content must clear the Brandenburg threshold; speech is only punishable if it is intended and likely to produce imminent lawless action. Absent that, the First Amendment protects it.
Bibliography:
Brandenburg v. Ohio, 395 U.S. 444 (1969).
Schenck v. United States, 249 U.S. 47 (1919).
EBSCO Research Starters, “Criminal Syndicalism Laws.”
Hamilton County Law Library, Allen Brown's Collection.
Hansen, Karen, "What Was the Clear and Present Danger Test for Free Speech — And Why Has It Been Replaced?" Freedom Forum (June 13, 2025).
Legal Information Institute, Cornell Law School, “Brandenburg Test.”
Legal Information Institute, Cornell Law School, “Clear and Present Danger,” (Aug. 1, 2022).
Riggs, William W., “Vietnam War,” Free Speech Center, Middle Tennessee State University (July 30, 2023).
Full text links:
Brandenburg v. Ohio: https://supreme.justia.com/cases/federal/us/395/444/
Schenck v. United States: https://supreme.justia.com/cases/federal/us/249/47/
Criminal Syndicalism Laws, EBSCO: https://www.ebsco.com/research-starters/law/criminal-syndicalism-la
Hamilton County Law Library: https://lawlibrary.hamiltoncountyohio.gov/allen-browns-collection-comes-to-hcll/
Freedom Forum article on Clear and Present Danger: https://www.freedomforum.org/clear-and-present-danger-test/
Brandenburg Test, Cornell LII: https://www.law.cornell.edu/wex/brandenburg_test
Clear and Present Danger, Cornell LII: https://www.law.cornell.edu/wex/clear_and_present_danger
Vietnam War, Free Speech Center: https://firstamendment.mtsu.edu/article/vietnam-war/
