1969 June 9

Brandenburg: First Amendment Protects Advocacy of Violence – But Not Incitement to Imminent Lawless Action


The case of Brandenburg v. Ohio involved Clarence Brandenburg, an Ohio Ku Klux Klan member convicted of violating the Ohio Criminal Syndicalism law for making extreme racist statements against African-Americans and Jews. The Supreme Court overturned his conviction on this day, holding that the First Amendment protected extremely offensive speech, except where there was a direct incitement to imminent lawless action.

Justice Louis Brandeis had articulated this principle in his famous dissent in Whitney v. California, decided on May 16, 1927. The Brandenburg decision established the outer limits of First Amendment protection of political speech.

The Court: “. . . 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.”

Learn more about the case: http://www.acluohio.org/cases/brandenburg-v-ohio

Read the important new book on free speech: Timothy Garton Ash, Free Speech: Ten Principles for a Connected World (2016)

Listen to the oral argument before the Court:  http://www.oyez.org/cases/1960-1969/1968/1968_492

Learn more about freedom of speech: https://www.aclu.org/free-speech

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