Brandenberg v. Ohio

395 U.S. 444

Case Year: 1969

Case Ruling: 8-0, Reversed

Opinion Justice: Black

FACTS

Clarence Brandenburg was the leader of an Ohio affiliate of the Ku Klux Klan, an organization dedicated to white supremacy. To obtain publicity for the KKK's goals, he invited a Cincinnati reporter and camera crew to attend a rally. Subsequently, local and national television stations aired some of the events that occurred at this gathering. One film showed twelve hooded figures, some of whom carried firearms, gathered around a large wooden cross, which they burned. Brandenburg, in Klan regalia, spoke the following words: "We're not a revengent organization, but 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 taken. We are marching on Congress July the Fourth, four hundred thousand strong. From there we are dividing into two groups, one group to march on St. Augustine, Florida, the other group to march into Mississippi." In another film, Brandenburg delivered a speech to the group in which he said, "Personally I believe the nigger should be returned to Africa, the Jew returned to Israel." Based on these films, Ohio authorities arrested Brandenburg for violating the Ohio Criminal Syndicalism law, passed in 1919 to prevent the spread of unpatriotic views. Similar to many other state laws of the sort upheld in Gitlow, the Ohio act prohibited "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 assembling with any group of persons formed to teach or advocate the doctrines of criminal syndicalism.

PER CURIAM.

The appellant, a leader of a Ku Klux Klan group, was convicted under the Ohio Criminal Syndicalism statute.

The . . . statute was enacted in 1919. From 1917 to 1920, identical or quite similar laws were adopted by 20 States and two territories. In 1927, this Court sustained the constitutionality of California's Criminal Syndicalism Act, the text of which is quite similar to that of the laws of Ohio. Whitney v. California (1927). The Court upheld the statute on the ground that, without more, "advocating" violent means to effect political and economic change involves such danger to the security of the State that the State may outlaw it. But Whitney has been thoroughly discredited by later decisions. See Dennis v. United States (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. As we said in Noto v. United States (1961), "the mere abstract teaching . . . of the moral propriety or even moral necessity for a resort to force and violence, is not the same as preparing a group for violent action and steeling it to such action." A statute which fails to draw this distinction impermissibly intrudes upon the freedoms guaranteed by the First and Fourteenth Amendments. It sweeps within its condemnation speech which our Constitution has immunized from governmental control.

Measured by this test, Ohio's Criminal Syndicalism Act cannot be sustained. The Act punishes persons who "advocate or teach the duty, necessity, or propriety" of violence "as a means of accomplishing industrial or political reform"; or who publish or circulate or display any book or paper containing such advocacy; or who "justify" the commission of violent acts "with intent to exemplify, spread or advocate the propriety of the doctrines of criminal syndicalism"; or who "voluntarily assemble" with a group formed "to teach or advocate the doctrines of criminal syndicalism." Neither the indictment nor the trial judge's instructions to the jury in any way refined the statute's bald definition of the crime in terms of mere advocacy not distinguished from incitement to imminent lawless action.

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 contrary teaching ofWhitney v. California cannot be supported, and that decision is therefore overruled.

Reversed.