Does a state criminal syndicalism statute that punishes mere advocacy of violence and assembly with groups advocating it, without requiring incitement to imminent lawless action, violate the First and Fourteenth Amendments?

Clarence Brandenburg, a leader of a Ku Klux Klan group in Ohio, telephoned a Cincinnati television reporter and invited him to cover a Klan rally on a farm in Hamilton County. The reporter and a cameraman attended and filmed the event, and portions were later broadcast locally and nationally. The films showed hooded figures, some carrying firearms, burning a large wooden cross. Scattered phrases that could be understood were derogatory toward Black people and Jews. In one film, Brandenburg, in Klan regalia, gave a speech stating that the Klan was not a revengent organization but that if the President, Congress, and Supreme Court continued to suppress the white Caucasian race, some revengeance might have to be taken. He also announced a planned march on Congress on July Fourth. In a second film, he added that the Black man should be returned to Africa and the Jew returned to Israel. Brandenburg carried no weapon, though others present did. No one was present other than participants and the newsmen. The State introduced the films, firearms, ammunition, a Bible, and a red hood as evidence. Brandenburg was charged under Ohio's Criminal Syndicalism statute with advocating the duty, necessity, or propriety of crime, sabotage, violence, or terrorism as a means of accomplishing industrial or political reform, and with voluntarily assembling with a group formed to advocate criminal syndicalism. He was fined $1,000 and sentenced to one to ten years' imprisonment.

Brandenburg was convicted in an Ohio trial court under the Ohio Criminal Syndicalism statute, Ohio Rev. Code Ann. § 2923.13, and was fined $1,000 and sentenced to one to ten years' imprisonment. He challenged the statute's constitutionality under the First and Fourteenth Amendments. The intermediate appellate court of Ohio affirmed the conviction without opinion. The Supreme Court of Ohio dismissed his appeal sua sponte, stating that no substantial constitutional question existed, and issued no opinion explaining its conclusion. Brandenburg appealed to the United States Supreme Court, which noted probable jurisdiction in 1968 and reversed.

(Per Curiam)

Yes. A state may not 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. Ohio's statute punished mere advocacy and assembly without drawing this distinction and therefore violates the First and Fourteenth Amendments.

Whitney v. California, 274 U.S. 357 (1927), had upheld a similar California statute on the theory that advocating violent means to effect political change endangers the State's security. Whitney has been thoroughly discredited by later decisions, including Dennis v. United States, 341 U.S. 494 (1951), which fashioned the principle that the guarantees of free speech and free press do not permit a State to proscribe advocacy of force or law violation absent incitement to imminent lawless action.

The mere abstract teaching of the moral propriety or even moral necessity of resorting to force and violence is not the same as preparing a group for violent action and steeling it to such action. Noto v. United States, 367 U.S. 290 (1961). A statute that fails to draw this distinction sweeps within its condemnation speech that the Constitution has immunized from governmental control.

Ohio's Act punishes persons who advocate or teach the duty, necessity, or propriety of violence as a means of accomplishing industrial or political reform, who publish or circulate such advocacy, who justify violent acts, or who voluntarily assemble with a group formed to advocate criminal syndicalism. Neither the indictment nor the trial judge's instructions refined the statute's definition in terms of incitement to imminent lawless action, and no Ohio court construction brought it within constitutional limits. Because the statute, by its terms and as applied, punishes mere advocacy and assembly to advocate, it falls within the condemnation of the First and Fourteenth Amendments. Statutes affecting the right of assembly must observe the same distinction between advocacy and incitement. Whitney is overruled and the conviction is reversed.

Concurrence (Black, J.) Joins the Court's opinion but understands it as simply citing Dennis v. United States without agreeing with the "clear and present danger" doctrine on which Dennis purported to rely. The "clear and present danger" doctrine should have no place in the interpretation of the First Amendment.

Concurrence (Douglas, J.) Joins the opinion of the Court but enters a caveat against the "clear and present danger" test. That test originated in World War I cases such as Schenck, Frohwerk, Debs, and Abrams, and has been easily manipulated to suppress dissent, even in wartime. It is irreconcilable with the First Amendment in peacetime. Dennis distorted the test beyond recognition and turned the trial of Marxist teachers into a political trial. There is no place in the First Amendment for any "clear and present danger" test, whether strict or free-wheeling. The line between what government may control and what it may not is the line between ideas and overt acts. Speech is immune from prosecution except in rare instances where it is brigaded with action, as in falsely shouting fire in a crowded theatre. There is no constitutional line between advocacy of abstract ideas and advocacy of political action, because the quality of advocacy turns on the depth of conviction, and government has no power to invade the sanctuary of belief and conscience.