Can a state criminalize advocacy of political reform through violence or unlawful means without violating the First and Fourteenth Amendments?

Brandenburg, a Ku Klux Klan leader, was convicted under Ohio's Criminal Syndicalism statute for advocating violence as a means of political reform and for voluntarily assembling with a group to teach criminal syndicalism. His conviction resulted in a $1,000 fine and a prison sentence of 1-10 years. The prosecution's case relied on films of a Ku Klux Klan rally where Brandenburg delivered speeches. In one such speech, he suggested that 'revengeance' might be necessary if the government continued to suppress the white race. Brandenburg also mentioned plans for a march on Washington D.C. and other locations.

The films presented as evidence showed some Klan members carrying weapons, though Brandenburg himself was not shown armed. The content of Brandenburg's speeches and the presence of armed individuals at the rally formed the basis for his conviction under the Criminal Syndicalism statute. Brandenburg's case subsequently moved through the appeals process, challenging the constitutionality of his conviction under Ohio law.

Brandenburg was convicted in an Ohio court for violating a state statute. He appealed his conviction, challenging the constitutionality of the statute. An intermediate appellate court affirmed the conviction without providing an opinion. Brandenburg then appealed to the Supreme Court of Ohio, which dismissed his appeal without explanation, stating there was no substantial constitutional question. Undeterred, Brandenburg appealed to the U.S. Supreme Court, which agreed to hear the case by noting probable jurisdiction.

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No. A state cannot criminalize advocacy of political reform through violence or unlawful means without violating the First and Fourteenth Amendments, unless such advocacy is directed to and likely to incite imminent lawless action. The constitutional guarantees of free speech and free press protect abstract advocacy of force or law violation. Only when speech is directed to inciting or producing imminent lawless action and is likely to incite or produce such action can it be proscribed. This test strikes a balance between protecting free expression and preventing actual violence or lawlessness. Mere advocacy of abstract ideas, even if they involve force or illegality, is protected speech under the First Amendment. The government's power to restrict expression must be limited to instances of clear and present danger of substantive evils. Statutes that fail to distinguish between mere advocacy and incitement to imminent lawless action impermissibly intrude upon First Amendment freedoms. The right to free speech includes the right to advocate unpopular or even revolutionary ideas. Only when advocacy crosses the line into incitement of imminent unlawful conduct does it lose constitutional protection. This standard provides breathing space for the marketplace of ideas while still allowing restrictions on speech that presents a genuine threat of immediate harm. By focusing on the imminence and likelihood of lawless action, rather than the content of the speech itself, this test protects political dissent and radical ideas from government censorship while still permitting intervention to prevent actual violence or law-breaking.

Concurrence (Black, J.) The "clear and present danger" doctrine has no place in First Amendment interpretation. All matters of belief should be beyond the reach of subpoenas or investigations. The First Amendment deserves broader protection, especially during times of peace. The Court's opinion is correct, but it does not go far enough in safeguarding free speech rights.

Concurrence (Douglas, J.) The "clear and present danger" test should be entirely eliminated from First Amendment jurisprudence. This is particularly crucial during peacetime. Free speech protections must be expanded to encompass all matters of belief, placing them beyond the reach of government intrusion through subpoenas or investigations. While the Court's decision is correct, it fails to provide sufficiently robust safeguards for free expression.