- [Instructor] The First Amendment right
to freedom of speech encompasses one of America's
most divisive and hotly debated subjects,
the advocacy of violence for political purposes.
Does the First Amendment protect
politically motivated incitement to violence?
Does it matter if the speaker's politics
are motivated by hate?
The United States Supreme Court considered these questions
in Brandenburg versus Ohio.
Clarence Brandenburg was a member of the Ku Klux Klan.
He invited a reporter to attend and film
a Ku Klux Klan meeting.
During the meeting, Klan members brandished weapons
and made derogatory remarks about African American
and Jewish people.
Brandenburg also said,
"we're not a revengent organization,
"but if our President, our Congress, our Supreme Court
"continue to suppress the white, Caucasian race,
"it's possible that there might have to be
"some revengeance taken."
After footage of this meeting aired on television,
the state of Ohio charged Brandenburg
with violating the Ohio Criminal Syndicalism Act.
The act criminalized the advocacy of:
"crime, sabotage, violence,
"or unlawful methods of terrorism
"as a means of accomplishing industrial
"or political reform."
Brandenburg was convicted,
and he appealed on the grounds
that the act violated his First Amendment right
to freedom of speech.
The state appellate court
affirmed his conviction
as did the Ohio Supreme Court.
The United States Supreme Court granted cert.
The issue before the court
was whether the First Amendment prohibits a statute
criminalizing the advocacy of violence
or unlawful actions
as a means of accomplishing a political agenda.
In a per curiam opinion,
the court held that the statue violated
the First Amendment,
and that a state may not outlaw speech,
unless the speech is directed to inciting violence
or lawless action,
and the speech is imminently likely to do so.
In so holding,
the court departed from the traditional
clear and present danger test
originally established in Schenk versus United States.
In Schenk, the court held that speech could be restricted
if it created a clear and present danger
of substantive evils
that the government had a right to prevent.
Under the Schenk test,
the advocacy of violence for political purposes
could be restricted
whether or not the advocacy was likely to lead
to concrete action.
In contrast, the Brandenburg court
distinguished between abstract advocacy
of unlawful or violent action,
which is generalized and non-specific,
and actual advocacy,
which directs and prepares the audience
to actually commit a specific unlawful act
in the immediate future.
Under the Brandenburg standard,
speech that promotes the necessity of violence
or lawless action vaguely, conditionally,
or sometime in the distant future, is protected.
However, speech that directs and animates the listener
to commit imminent violence or lawless action
isn't protected.
Applying this standard, the court struck down the act,
because it punished abstract advocacy of violence
as a means of accomplishing political reform.
For example, under the act,
a person could be punished
for the circulation of a book
containing philosophical teachings
or political theories.
The act unconstitutionally prohibited advocacy
that wasn't likely to incite imminent lawless action.
Therefore, it didn't pass constitutional muster
under the court's new standard.
The court reversed the Ohio Supreme Court's ruling
and overturned Brandenburg's conviction.
Justice Douglas wrote a concurring opinion
summarizing the World War One cases
that shaped the clear and present danger test.
According to Justice Douglas,
the test had been distorted to such an extent
that even frivolous threats would satisfy the test.
For example, in Dennis versus United States,
the court had reasoned that the advocacy of communism
could be constitutionally restricted,
despite the low probability
that the advocacy would lead to successful
revolutionary action against democracy.
In Douglas' view,
the seriousness of the threat
should be measured by the actions taken
to further the belief,
rather than the nature of the belief itself.
Brandenburg versus Ohio has had a lasting impact
on First Amendment jurisprudence,
by incorporating the element of imminence
into the constitutional standard for incitement,
the decision limited the government's power
to restrict potentially dangerous political speech.
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