Brandenburg v. Ohio - 395 U.S. 444 (1969)
* Syllabus
* Case U.S. Supreme Court
Brandenburg v. Ohio, 395 U.S. 444 (1969)
Brandenburg v. Ohio
No. 492
Argued February 27, 1969
Decided June 9, 1969
395 U.S. 444
APPEAL FROM THE SUPREME COURT OF OHIO
Syllabus
Appellant, a Ku Klux Klan leader, was convicted under the Ohio Criminal Syndicalism statute for
"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 for
"voluntarily assembl[ing] with any society, group or assemblage of
persons formed to teach or advocate the doctrines of criminal
syndicalism."
Neither the indictment nor the trial judge's instructions refined the statute's definition of the crime in terms of mere advocacy not
distinguished from incitement to imminent lawless action.
Held: Since the statute, by its 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, it falls within the condemnation of the First and Fourteenth
Amendments. Freedoms of speech and press do not permit a State to
forbid 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. Whitney v. California, 274 U. S. 357, overruled.
Reversed.
PER CURIAM.
The appellant, a leader of a Ku Klux Klan group, was convicted under
the Ohio Criminal Syndicalism statute for "advocat[ing] . . . the duty,
necessity, or propriety
Page 395 U. S. 445
of crime, sabotage, violence, or unlawful methods of terrorism as a
means of accomplishing industrial or political reform" and for
"voluntarily assembl[ing] with any society, group, or assemblage of
persons formed to teach or advocate the doctrines of criminal
syndicalism."
Ohio Rev.Code Ann. § 2923.13. He was fined $1,000 and sentenced to
one to 10 years' imprisonment. The appellant challenged the
constitutionality of the criminal syndicalism statute under the First
and Fourteenth Amendments to the United States Constitution, but the
intermediate appellate court of Ohio affirmed his conviction without
opinion. The Supreme Court of Ohio dismissed his appeal sua sponte "for the reason that no substantial constitutional question exists
herein." It did not file an opinion or explain its conclusions. Appeal was taken to this Court, and we noted probable jurisdiction. 393 U. S. 94 (196). We reverse.
The record shows that a man, identified at trial as the appellant,
telephoned an announcer-reporter on the staff of a Cincinnati television station and invited him to come to a Ku Klux Klan "rally" to be held at a farm in Hamilton County. With the cooperation of the organizers, the reporter and a cameraman attended the meeting and filmed the events.
Portions of the films were later broadcast on the local station and on a national network.
The prosecution's case rested on the films and on testimony
identifying the appellant as the person who communicated with the
reporter and who spoke at the rally. The State also introduced into
evidence several articles appearing in the film, including a pistol, a
rifle, a shotgun, ammunition, a Bible, and a red hood worn by the
speaker in the films.
One film showed 12 hooded figures, some of whom carried firearms.
They were gathered around a large wooden cross, which they burned. No
one was present
Page 395 U. S. 446
other than the participants and the newsmen who made the film. Most of the words uttered during the scene were incomprehensible when the film
was projected, but scattered phrases could be understood that were
derogatory of Negroes and, in one instance, of Jews. [Footnote 1] Another scene on the same film showed the appellant, in Klan regalia, making a speech. The speech, in full, was as follows:
"This is an organizers' meeting. We have had quite a few members
here today which are -- we have hundreds, hundreds of members throughout the State of Ohio. I can quote from a newspaper clipping from the
Columbus, Ohio, Dispatch, five weeks ago Sunday morning. The Klan has
more members in the State of Ohio than does any other organization.
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.
Thank you. "
Page 395 U. S. 447
The second film showed six hooded figures one of whom, later
identified as the appellant, repeated a speech very similar to that
recorded on the first film. The reference to the possibility of
"revengeance" was omitted, and one sentence was added: "Personally, I
believe the nigger should be returned to Africa, the Jew returned to
Israel." Though some of the figures in the films carried weapons, the
speaker did not.
The Ohio Criminal Syndicalism Statute was enacted in 1919. From 1917 to 1920, identical or quite similar laws were adopted by 20 States and
two territories. E. Dowell, A History of Criminal Syndicalism
Legislation in the United States 21 (1939). In 1927, this Court
sustained the constitutionality of California's Criminal Syndicalism
Act, Cal.Penal Code §§ 11400-11402, the text of which is quite similar
to that of the laws of Ohio. Whitney v. California, 274 U. S. 357 (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. Cf. Fiske v. Kansas, 274 U. S. 380 (1927). But Whitney has been thoroughly discredited by later decisions. See Dennis v. United States, 341 U. S. 494, at 341 U. S. 507 (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. [Footnote 2] As we
Page 395 U. S. 448
said in Noto v. United States, 367 U. S. 290, 367 U. S. 297-298 (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."
See also Herndon v. Lowry, 301 U. S. 242, 301 U. S. 259-261 (1937); Bond v. Floyd, 385 U. S. 116, 385 U. S. 134 (1966). 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. Cf. Yates v. United States, 354 U. S. 298 (1957); De Jonge v. Oregon, 299 U. S. 353 (1937); Stromberg v. California, 283 U. S. 359 (1931). See also United States v. Robel, 389 U. S. 258 (1967); Keyishian v. Board of Regents, 385 U. S. 589 (1967); Elfbrandt v. Russell, 384 U. S. 11 (1966); Aptheker v. Secretary of State, 378 U. S. 500 (1964); Baggett v. Bullitt, 377 U. S. 360 (1964).
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
Page 395 U. S. 449
in terms of mere advocacy not distinguished from incitement to imminent lawless action. [Footnote 3]
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. [Footnote 4] Such a statute falls within the condemnation of the First and Fourteenth Amendments. The contrary teaching of Whitney v. California, supra, cannot be supported, and that decision is therefore overruled.
Reversed.
[Footnote 1]
The significant portions that could be understood were:
"How far is the nigger going to -- yeah."
"This is what we are going to do to the niggers."
"A dirty nigger."
"Send the Jews back to Israel."
"Let's give them back to the dark garden."
"Save America."
"Let's go back to constitutional betterment."
"Bury the niggers."
"We intend to do our part."
"Give us our state rights."
"Freedom for the whites."
"Nigger will have to fight for every inch he gets from now on."
[Footnote 2]
It was on the theory that the Smith Act, 54 Stat. 670, 18 U.S.C. §
35, embodied such a principle and that it had been applied only in
conformity with it that this Court sustained the Act's
constitutionality. Dennis v. United States, 341 U. S. 494 (1951). That this was the basis for Dennis was emphasized in Yates v. United States, 354 U. S. 298, 354 U. S. 320-324 (1957), in which the Court overturned convictions for advocacy of the
forcible overthrow of the Government under the Smith Act, because the
trial judge's instructions had allowed conviction for mere advocacy,
unrelated to its tendency to produce forcible action.
[Footnote 3]
The first count of the indictment charged that appellant
"did unlawfully by word of mouth advocate the necessity, or propriety of crime, violence, or unlawful methods of terrorism as a means of
accomplishing political reform. . . ."
The second count charged that appellant "did unlawfully voluntarily
assemble with a group or assemblage of persons formed to advocate the
doctrines of criminal syndicalism. . . ." The trial judge's charge
merely followed the language of the indictment. No construction of the
statute by the Ohio courts has brought it within constitutionally
permissible limits. The Ohio Supreme Court has considered the statute
in only one previous case, State v. Kassay, 126 Ohio St. 177, 184 N.E. 521 (1932), where the constitutionality of the statute was sustained.
[Footnote 4]
Statutes affecting the right of assembly, like those touching on
freedom of speech, must observe the established distinctions between
mere advocacy and incitement to imminent lawless action, for, as Chief
Justice Hughes wrote in De Jonge v. Oregon, supra, at 299 U. S. 364: "The right of peaceable assembly is a right cognate to those of free speech and free press, and is equally fundamental." See also United States v. Cruikshank, 92 U. S. 542, 92 U. S. 552 (1876); Hague v. CIO, 307 U. S. 496, 307 U. S. 513, 307 U. S. 519 (1939); NAACP v. Alabama ex rel. Patterson, 357 U. S. 449, 357 U. S. 460-461 (1958).
MR. JUSTICE BLACK, concurring.
I agree with the views expressed by MR. JUSTICE DOUGLAS in his
concurring opinion in this case that the "clear and present danger"
doctrine should have no place
Page 395 U. S. 450
in the interpretation of the First Amendment. I join the Court's opinion, which, as I understand it, simply cites Dennis v. United States, 341 U. S. 494 (1951), but does not indicate any agreement on the Court's part with the "clear and present danger" doctrine on which Dennis purported to rely.
MR. JUSTICE DOUGLAS, concurring.
While I join the opinion of the Court, I desire to enter a caveat.
The "clear and present danger" test was adumbrated by Mr. Justice
Holmes in a case arising during World War I -- a war "declared" by the
Congress, not by the Chief Executive. The case was Schenck v. United States, 249 U. S. 47, 249 U. S. 52, where the defendant was charged with attempts to cause insubordination
in the military and obstruction of enlistment. The pamphlets that were
distributed urged resistance to the draft, denounced conscription, and
impugned the motives of those backing the war effort. The First
Amendment was tendered as a defense. Mr. Justice Holmes, in rejecting
that defense, said:
"The question in every case is whether the words used are used in
such circumstances and are of such a nature as to create a clear and
present danger that they will bring about the substantive evils that
Congress has a right to prevent. It is a question of proximity and
degree."
Frohwerk v. United States, 249 U. S. 204, also authored by Mr. Justice Holmes, involved prosecution and
punishment for publication of articles very critical of the war effort
in World War I. Schenck was referred to as a conviction for obstructing security "by words of persuasion." Id. at 249 U. S. 206. And the conviction in Frohwerk was sustained because "the circulation of the paper was
Page 395 U. S. 451
in quarters where a little breath would be enough to kindle a flame." Id. at 249 U. S. 209.
Debs v. United States, 249 U. S. 211, was the third of the trilogy of the 1918 Term. Debs was convicted of
speaking in opposition to the war where his "opposition was so expressed that its natural and intended effect would be to obstruct recruiting." Id. at 249 U. S. 215.
"If that was intended, and if, in all the circumstances, that would
be its probable effect, it would not be protected by reason of its being part of a general program and expressions of a general and
conscientious belief."
Ibid.
In the 1919 Term, the Court applied the Schenck doctrine to affirm the convictions of other dissidents in World War I. Abrams v. United States, 250 U. S. 616, was one instance. Mr. Justice Holmes, with whom Mr. Justice Brandeis concurred, dissented. While adhering to Schenck, he did not think that, on the facts, a case for overriding the First Amendment had been made out:
"It is only the present danger of immediate evil or an intent to
bring it about that warrants Congress in setting a limit to the
expression of opinion where private rights are not concerned. Congress
certainly cannot forbid all effort to change the mind of the country."
Id. at 250 U. S. 628.
Another instance was Schaefer v. United States, 251 U. S. 466, in which Mr. Justice Brandeis, joined by Mr. Justice Holmes, dissented. A third was Pierce v. United States, 252 U. S. 239, in which, again, Mr. Justice Brandeis, joined by Mr. Justice Holmes, dissented.
Those, then, were the World War I cases that put the gloss of "clear
and present danger" on the First Amendment. Whether the war power --
the greatest leveler of them all -- is adequate to sustain that doctrine is debatable.
Page 395 U. S. 452
The dissents in Abrams, Schaefer, and Pierce show how easily "clear and present danger" is manipulated to crush what Brandeis called "[t]he fundamental right of free men to strive for
better conditions through new legislation and new institutions" by
argument and discourse (Pierce v. United States, supra, at 252 U. S. 273) even in time of war. Though I doubt if the "clear and present danger"
test is congenial to the First Amendment in time of a declared war, I am certain it is not reconcilable with the First Amendment in days of
peace.
The Court quite properly overrules Whitney v. California, 274 U. S. 357, which involved advocacy of ideas which the majority of the Court deemed unsound and dangerous.
Mr. Justice Holmes, though never formally abandoning the "clear and
present danger" test, moved closer to the First Amendment ideal when he
said in dissent in Gitlow v. New York, 268 U. S. 652, 268 U. S. 673:
"Every idea is an incitement. It offers itself for belief, and, if
believed, it is acted on unless some other belief outweighs it or some
failure of energy stifles the movement at its birth. The only
difference between the expression of an opinion and an incitement in the narrower sense is the speaker's enthusiasm for the result. Eloquence
may set fire to reason. But whatever may be thought of the redundant
discourse before us, it had no chance of starting a present
conflagration. If, in the long run, the beliefs expressed in
proletarian dictatorship are destined to be accepted by the dominant
forces of the community, the only meaning of free speech is that they
should be given their chance and have their way."
We have never been faithful to the philosophy of that dissent.
Page 395 U. S. 453
The Court, in Herndon v. Lowry, 301 U. S. 242, overturned a conviction for exercising First Amendment rights to incite insurrection because of lack of evidence of incitement. Id. at 301 U. S. 259-261. And see Hartzel v. United States, 322 U. S. 680. In Bridges v. California, 314 U. S. 252, 314 U. S. 261-263, we approved the "clear and present danger" test in an elaborate dictum
that tightened it and confined it to a narrow category. But in Dennis v. United States, 341 U. S. 494, we opened wide the door, distorting the "clear and present danger" test beyond recognition. [Footnote 2/1]
In that case, the prosecution dubbed an agreement to teach the
Marxist creed a "conspiracy." The case was submitted to a jury on a
charge that the jury could not convict unless it found that the
defendants "intended to overthrow the Government as speedily as
circumstances would permit.'" Id. at 341 U. S. 509-511. The Court sustained convictions under that charge, construing it to mean a determination of
""whether the gravity of the evil,' discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger." [Footnote 2/2]"
Id. at 341 U. S. 510, quoting from United States v. Dennis, 183 F.2d 201, 212.
Out of the "clear and present danger" test came other offspring.
Advocacy and teaching of forcible overthrow of government as an abstract principle is immune from prosecution. Yates v. United States, 354 U. S. 298, 354 U. S. 318. But an "active" member, who has a guilty knowledge and intent of the aim to overthrow the Government
Page 395 U. S. 454
by violence, Noto v. United States, 367 U. S. 290, may be prosecuted. Scales v. United States, 367 U. S. 203, 367 U. S. 228. And the power to investigate, backed by the powerful sanction of
contempt, includes the power to determine which of the two categories
fits the particular witness. Barenblatt v. United States, 360 U. S. 109, 360 U. S. 130. And so the investigator roams at will through all of the beliefs of
the witness, ransacking his conscience and his innermost thoughts.
Judge Learned Hand, who wrote for the Court of Appeals in affirming the judgment in Dennis, coined the "not improbable" test, 183 F.2d 201, 214, which this Court
adopted and which Judge Hand preferred over the "clear and present
danger" test. Indeed, in his book, The Bill of Rights 59 (1958), in
referring to Holmes' creation of the "clear and present danger" test, he said, "I cannot help thinking that, for once, Homer nodded."
My own view is quite different. I see no place in the regime of the
First Amendment for any "clear and present danger" test, whether strict
and tight, as some would make it, or free-wheeling, as the Court in Dennis rephrased it.
When one reads the opinions closely and sees when and how the "clear
and present danger" test has been applied, great misgivings are aroused. First, the threats were often loud, but always puny, and made serious
only by judges so wedded to the status quo that critical analysis made them nervous. Second, the test was so twisted and perverted in Dennis as to make the trial of those teachers of Marxism an all-out political
trial which was part and parcel of the cold war that has eroded
substantial parts of the First Amendment.
Action is often a method of expression, and within the protection of the First Amendment.
Suppose one tears up his own copy of the Constitution in eloquent protest to a decision of this Court. May he be indicted?
Page 395 U. S. 455
Suppose one rips his own Bible to shreds to celebrate his departure
from one "faith" and his embrace of atheism. May he be indicted?
Last Term, the Court held in United States v. O'Brien, 391 U. S. 367, 391 U. S. 382, that a registrant under Selective Service who burned his draft card in
protest of the war in Vietnam could be prosecuted. The First Amendment
was tendered as a defense and rejected, the Court saying:
"The issuance of certificates indicating the registration and
eligibility classification of individuals is a legitimate and
substantial administrative aid in the functioning of this system. And
legislation to insure the continuing availability of issued certificates serves a legitimate and substantial purpose in the system's
administration."
391 U.S. at 391 U. S. 377-378.
But O'Brien was not prosecuted for not having his draft card
available when asked for by a federal agent. He was indicted, tried,
and convicted for burning the card. And this Court's affirmance of that conviction was not, with all respect, consistent with the First
Amendment.
The act of praying often involves body posture and movement, as well
as utterances. It is nonetheless protected by the Free Exercise Clause. Picketing, as we have said on numerous occasions, is "free speech
plus." See Bakery Drivers Local v. Wohl, 315 U. S. 769, 315 U. S. 775 (DOUGLAS, J., concurring); Giboney v. Empire Storage Co., 336 U. S. 490, 336 U. S. 501; Hughes v. Superior Court, 339 U. S. 460, 339 U. S. 465; Labor Board v. Fruit Packers, 377 U. S. 58, 377 U. S. 77 (BLACK, J., concurring), and id. at 377 U. S. 93 (HARLAN, J., dissenting); Cox v. Louisiana, 379 U. S. 559, 379 U. S. 578 (opinion of BLACK, J.); Food Employees v. Logan Plaza, 391 U. S. 308, 391 U. S. 326 (DOUGLAS, J., concurring). That means that it can be regulated when it comes to the "plus" or "action" side of the protest. It can be
regulated as to
Page 395 U. S. 456
the number of pickets and the place and hours (see Cox v. Louisiana, supra), because traffic and other community problems would otherwise suffer.
But none of these considerations is implicated in the symbolic protest of the Vietnam war in the burning of a draft card.
One's beliefs have long been thought to be sanctuaries which government could not invade. Barenblatt is one example of the ease with which that sanctuary can be violated.
The lines drawn by the Court between the criminal act of being an
"active" Communist and the innocent act of being a nominal or inactive
Communist mark the difference only between deep and abiding belief and
casual or uncertain belief. But I think that all matters of belief are
beyond the reach of subpoenas or the probings of investigators. That is why the invasions of privacy made by investigating committees were
notoriously unconstitutional. That is the deep-seated fault in the
infamous loyalty security hearings which, since 1947, when President
Truman launched them, have processed 20,000,000 men and women. Those
hearings were primarily concerned with one's thoughts, ideas, beliefs,
and convictions. They were the most blatant violations of the First
Amendment we have ever known.
The line between what is permissible and not subject to control and
what may be made impermissible and subject to regulation is the line
between ideas and overt acts.
The example usually given by those who would punish speech is the case of one who falsely shouts fire in a crowded theatre.
This is, however, a classic case where speech is brigaded with action. See Speiser v. Randall, 357 U. S. 513, 357 U. S. 536-537 (DOUGLAS, J., concurring). They are indeed inseparable, and a prosecution can be launched for the overt
Page 395 U. S. 457
acts actually caused. Apart from rare instances of that kind, speech
is, I think, immune from prosecution. Certainly there is no
constitutional line between advocacy of abstract ideas, as in Yates, and advocacy of political action, as in Scales. The quality of advocacy turns on the depth of the conviction, and
government has no power to invade that sanctuary of belief and
conscience. [Footnote 2/3]
[Footnote 2/1]
See McKay, The Preference For Freedom, 34 N.Y.U.L.Rev. 1182, 1203-1212 (1959).
[Footnote 2/2]
See Feiner v. New York, 340 U. S. 315, where a speaker was arrested for arousing an audience when the only
"clear and present danger" was that the hecklers in the audience would
break up the meeting.
[Footnote 2/3]
See MR. JUSTICE BLACK, dissenting, in Communications Assn. v. Douds, 339 U. S. 382, 339 U. S. 446, 339 U. S. 449 et seq.
-------------------------
Official Supreme Court caselaw is only found in the print version of the United States Reports. Justia caselaw is provided for general
informational purposes only, and may not reflect current legal
developments, verdicts or settlements. We make no warranties or
guarantees about the accuracy, completeness, or adequacy of the
information contained on this site or information linked to from this
site. Please check official sources.
