Brandenburg: First Amendment Protects Advocacy of Violence – But Not Incitement to Imminent Lawless Action
In Brandenburg v. Ohio on this day the Supreme Court overturned the conviction of 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 court held 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: Nadine Strossen, Hate Speech: Why We Should Resist it with Free Speech, Not censorship (2018)
Listen to the oral argument before the Court: http://www.oyez.org/cases/1960-1969/1968/1968_492
And Read: Samuel Walker, Hate Speech: The History of An American Controversy (1994)
Learn about the 100 Year fight for free speech in America: Lee C. Bollinger and Geoffrey Stone, The Free Speech Century (2018)