Brandenburg v. Ohio

PETITIONER: Clarence Brandenburg
RESPONDENT: State of Ohio

DECIDED BY: Warren Court (1969)

CITATION: 395 US 444 (1969)
ARGUED: Feb 27, 1969
DECIDED: Jun 09, 1969

Facts of the case

Brandenburg, a leader in the Ku Klux Klan, made a speech at a Klan rally and was later convicted under an Ohio criminal syndicalism law. The law made illegal advocating "crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform," as well as assembling "with any society, group, or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism."


Did Ohio's criminal syndicalism law, prohibiting public speech that advocates various illegal activities, violate Brandenburg's right to free speech as protected by the First and Fourteenth Amendments?

Media for Brandenburg v. Ohio

Audio Transcription for Oral Argument - February 27, 1969 in Brandenburg v. Ohio

Earl Warren:

Number 492, Clarence Brandenburg, appellate versus Ohio.

Mr. Brown.

Allen Brown:

Mr. Chief Justice, members of the Court.

We have before us case arising in the State of Ohio under a conviction under Ohio's Criminal Syndicalism Act.

We have indeed before us something of rarity.

It is as far as I know a third case ever tried under Ohio's Criminal Syndicalism Act and the first to ever reach the appellate level.

I -- there was earlier in Ohio when their peculiar proceedings in which a prosecutor could bring a proceeding before the Supreme Court on appeal for a question of law only.

A proceeding in which -- a motion was made in the lower court in Ohio, attacking the constitutionality of Ohio's Criminal Syndicalism Law.

The lower court in Ohio held the law to be unconstitutional.

It was appealed to the Supreme Court in State versus Kassay and in what is basically in advisory opinion.

The Court stated that it was constitutional.

If the Court also stated several engaging other things.

It stated that the First Amendment did not apply to the states of the union.

It also stated that the measure of its application was an issue in its constitutionality and it would attend the first trial of a case to see what is the proper measure of its application.

The Court waited patiently for the first application to a case that arose some 40 years later in this case and surprisingly despite the invitation here sent out in Kassay, the Court declined to even hear his constitutional question on the application in this case.

It in fact defaulted to this Court, Ohio's privilege are setting forth the limitations of the application of its statute.

Ohio's privileges are setting forth potentiality of clarification and delineation of a statute which obviously on its face rushes head long into the First Amendment.

These are the facts in this case.

A television reporter receives a telephone call indicating that if he wanted to he could come and take movies of a Ku Klux Klan meeting.

He came.

He met some hooded figures and arrangements were made for the taking of a movie.

A movie was taken in which a cross was burned, some figures milled about, and yelled some stupid and rather, a senseless slogans and then a single figure was panned on, and he made a speech, a speech full of conditions, precedents, and reservations, hyperbola self-evidently stupid and silly.

The --he asserted that the clan was the largest organization in the State of Ohio.

He then went on in a -- with a condition precedent that if the various branch is the Government including this Court, do not mend their ways that revengeance, a word of his own coining I assume would be taken.

He did not specify the revengeance and we do not know what particular aspect of the democratic process he was going to involve himself in revengeance.

He then spoke of a March not in identifying it as an armed march or any sort of march of any force or violence into Washington and then into two southern states, incidentally, raising federal questions perhaps rather than internal state questions.

Another film taken is inside the house --

Potter Stewart:

There were guns?

There were guns in this first --

Allen Brown:

There were guns in both films.