Brandenburg v. Ohio: Case Brief

Instructor: Brittany McKenna

Brittany is a licensed attorney who specializes in criminal law, legal writing, and appellate practice and procedure.

Brandenburg v. Ohio was a landmark First Amendment decision by the Supreme Court that helped define the constitutional limitations on punishing certain types of speech. In this lesson, you will learn about the facts of the case, as well as the Supreme Court's decision and analysis.

The Facts of Brandenburg v. Ohio

Ohio Ku Klux Klan leader Clarence Brandenburg was arrested for advocating violence following a rally where participants burned crosses and made speeches about the 'oppression' of the 'Caucasian race'. One of the speeches announced a march on Washington, D.C. to protest the 'suppression of whites'.

Brandenburg was charged under a law known as the Ohio Criminal Syndicalism statute , which criminalized '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 was convicted of violated the syndicalism law, fined, and sentenced to serve 10 years in prison. Brandenburg appealed his conviction all the way to the Supreme Court.

The Questions Presented

The First Amendment protects the right to exercise free speech by prohibiting the enforcement of any law that limit's one's ability to exercise that right.

The question presented to the Supreme Court in Brandenburg was whether the Ohio Criminal Syndicalism statute violated the First Amendment by punishing the constitutional exercise of free speech?

The Holding and Analysis of the Supreme Court

The Supreme Court held that the Ohio Criminal Syndicalism statute violated the First Amendment and was therefore unconstitutional. Specifically, the Supreme Court explained that the government can't punish someone from advocating some kind of public action or cause simply because the speaker's message threatens the use of force (i.e.--staging a protest march on Washington).

In reaching its conclusion, the Supreme Court recognized there are some forms of speech that can (lawfully) be forbidden under the First Amendment--namely, speech that 'incites imminent lawless action'. In other words, speech that is likely to encourage someone (or a group of people) to commit a crime or otherwise act in a criminal fashion.

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