Brandenburg v. Ohio Protected a Klansman's Speech, and It Protects Yours Too

The easiest speech to defend is the speech you like. Nobody needs a Supreme Court for that. The test of a free-speech principle is whether you will defend it for a man whose views you find repugnant, and the reason you will is not that you admire him. It is that the rule that protects him is the rule that protects you.

Brandenburg v. Ohio, decided on June 9, 1969, is the case that proves the point. The Court overturned the conviction of a Ku Klux Klan leader, and in doing so wrote the test that governs the punishment of advocacy to this day. It is one of the most important free-speech decisions in American history, and it is a case every conservative should know cold, because the rule it announced is the thing standing between a dissenter and a prosecutor.

I will give you the facts, the holding, the history of the rules it replaced, and then the argument.

Terms

Define terms first.

• Advocacy is speech urging a belief or a course of action, including a belief that the law should be broken or the government overthrown.
• Incitement is advocacy that is directed to producing imminent lawless action and is likely to produce it. It is a narrow category and it is not protected.
• Criminal syndicalism was the name given in early twentieth-century state laws to the advocacy of violence or sabotage as a means of political or industrial change.
• Per curiam means "by the court": an unsigned opinion issued for the Court as a whole.

The facts

In the summer of 1964, Clarence Brandenburg, a leader of a Ku Klux Klan group in Ohio, invited a reporter from a Cincinnati television station to attend a Klan rally on a farm in Hamilton County. The reporter came with a camera crew. The film showed several men in robes and hoods, some carrying firearms, gathered around a large wooden cross, which they burned. Brandenburg appeared on camera in a robe and a hood and delivered a short speech. The speech was rambling, hateful toward Black people and Jews, and included a statement that if the President, Congress and the Supreme Court continued to suppress the white race, it was possible that some revengeance would have to be taken. He also mentioned a planned march on Washington on the Fourth of July. The film was broadcast on local and national television.

Ohio charged him under its Criminal Syndicalism statute, enacted in 1919. The law made it a crime to advocate the duty, necessity or propriety of crime, sabotage, violence or unlawful methods of terrorism as a means of accomplishing industrial or political reform, and to assemble with any group formed to teach or advocate such doctrines. A jury convicted Brandenburg. He was fined one thousand dollars and sentenced to one to ten years in prison. Ohio's appeals court affirmed, and its Supreme Court dismissed his appeal. The U.S. Supreme Court took the case.

The holding

The Court's decision was unanimous. It was issued per curiam, without a named author, and it reversed the conviction. The core of the opinion is a single rule. The Court held 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.

That sentence contains three requirements, and each one does work.

1. Intent. The speech must be directed to inciting or producing lawless action. A speaker who is merely expressing an opinion, or predicting, or venting, has not met the test.
2. Imminence. The lawless action must be imminent. A call to violence at some unspecified later date, or a general statement that the system may someday be overthrown, does not qualify.
3. Likelihood. The speech must be likely to produce that action. An inflammatory speech to an audience that will not act on it falls outside the exception.

The Ohio statute failed this test, the Court said, because it punished mere advocacy and the assembly of people who advocate, without distinguishing between abstract teaching and preparing a group for violent action. A law that makes no such distinction sweeps within its condemnation speech that the Constitution protects.

Justices Black and Douglas each wrote a short separate concurrence. Douglas, in particular, argued that the old "clear and present danger" test should be rejected altogether, and that the First Amendment protected speech unless it was an integral part of unlawful conduct. The Court did not adopt that view, but the opinion that resulted was strong enough.

The rules it replaced

To understand how much the case changed, look at what came before.

In Schenck v. United States (1919), Justice Holmes, writing for a unanimous Court, upheld the conviction of a Socialist Party official who distributed leaflets urging resistance to the draft during World War I. Holmes wrote that the question was whether the words create a clear and present danger of the substantive evils Congress has a right to prevent. It was in that opinion that Holmes offered his famous remark about falsely shouting fire in a crowded theater. The same year the Court upheld the conviction of Eugene Debs, the Socialist candidate, for an antiwar speech. The "clear and present danger" test sounded protective and in practice was not: it let juries convict people for opposing a war.

Judge Learned Hand had offered a sharper test in 1917 in Masses Publishing Co. v. Patten, saying that speech should be punished only when it directly urges unlawful action. His approach was in some ways a forerunner of Brandenburg, but the Supreme Court did not adopt it for decades.

In Whitney v. California (1927), the Court upheld the conviction of Anita Whitney under California's Criminal Syndicalism Act, simply for helping to organize a political party that advocated unlawful methods. Justice Brandeis, joined by Justice Holmes, wrote a concurrence, concurring only because of a technicality, which became one of the most celebrated defenses of free speech in American law. Brandeis argued that the remedy for bad speech is more speech, not enforced silence, and that only an emergency can justify repression, an emergency in which the evil is so imminent that there is no time to answer it with argument. That is the idea Brandenburg converted into law, and Brandenburg expressly overruled Whitney.

In Dennis v. United States (1951), the Court, in the heat of the early Cold War, upheld the convictions of eleven leaders of the Communist Party under the Smith Act, which made it unlawful to advocate the overthrow of the government by force. The plurality gave the "clear and present danger" test a gloss that allowed conviction even where the danger was remote, since the gravity of the evil, discounted by its improbability, could justify the restriction. In Yates v. United States (1957), the Court narrowed the reach of the Smith Act by distinguishing advocacy of abstract doctrine from advocacy of action. That distinction, between talking about revolution and organizing one, grows into the Brandenburg test twelve years later.

So the history runs like this. For fifty years, the government could punish radicals, antiwar speakers and members of unpopular parties on the theory that their words might lead, someday, somehow, to harm. Brandenburg ended that. It said the state may not punish ideas, including terrible ones. It may punish the speaker who is, in effect, lighting the fuse.

The steelman

The best objection to Brandenburg is this. The Klan is a movement with a long history of actual terror, including lynchings and bombings, and the idea that a Klan leader with a robe, a gun and a burning cross is merely expressing an abstract opinion strains belief. The context of a Klan rally is intimidation. A test that requires imminence lets a determined speaker build a movement of hatred, point it at a target, and avoid punishment by being careful about timing. A society has a right to protect its members from organizations whose purpose is to terrorize. Other democracies, many of them thoughtful and free, ban hate groups and punish incitement to hatred, and they have not collapsed into tyranny.

That is a serious argument, and I do not wave it away. Terror is real. The history of the Klan is a history of violence. A reasonable person can look at that rally and want it stopped.

The answer, point by point

One: Brandenburg does not protect terror. It protects speech and leaves conduct to the criminal law. The Court has held, in Virginia v. Black (2003), that a state may ban cross burning carried out with the intent to intimidate, and in Counterman v. Colorado (2023), that true threats may be punished when the speaker has a culpable state of mind. The incitement test sits beside those doctrines. A Klansman who threatens a specific family, who assaults, who conspires, who burns a cross on a neighbor's lawn to frighten them, can be prosecuted. What he cannot be prosecuted for is holding a rally and expressing hateful opinions.

Two: the question who decides is the key to the whole subject. A law that punishes dangerous or hateful advocacy requires an official to determine which advocacy is dangerous. In 1919 that official decided that antiwar Socialists were dangerous. In 1927 it was a woman who helped found a political party. In 1951 it was the Communists. In every era, the government that gets the power to punish bad ideas uses it first against its critics. The category of dangerous speech is always elastic when the person defining it is the one in power.

Three: Brandenburg is the reason you can criticize the government without a lawyer on retainer. Consider what an expansive, "bad tendency" rule would do to any conservative. A speaker who argues that a government agency is lawless and should be dismantled, a pastor who tells his congregation to disobey an unjust law, a protester whose rhetoric about a policy is hot, a talk radio host who says that a politician deserves to be run out of town: all of them are advocating something, and a prosecutor who dislikes them can say that the words tend to produce trouble. The imminence requirement says no. You may argue for anything, however radical, until you are directing a crowd toward a crime that is about to happen.

Four: the comparison to other democracies is real but incomplete. Several countries ban hate speech and incitement to hatred, and some do so in ways that sweep in political debate. The American tradition made a different bet, which is that a government with the power to ban odious opinions will use it on opinions that are merely unpopular. That bet has produced a country where dissent is unusually safe. Judging by the history of the Sedition Act of 1798, told in The Sedition Act of 1798 Jailed a Congressman Who Won Reelection From His Cell, it is a bet the Founders' generation was already learning to make.

Five: the test works. The Court applied it in Hess v. Indiana (1973), reversing the conviction of an antiwar protester whose statement was directed at no one in particular and did not call for immediate action, and in NAACP v. Claiborne Hardware Co. (1982), where the Court held that the nonviolent elements of a civil rights boycott were protected and that a boycott leader's fiery speeches did not amount to unprotected incitement. The same rule that protects a Klansman's rally protects civil rights marchers. That is not a coincidence. A rule that protects only the speakers you like is not a rule.

What it means for conservatives

I will be direct. A conservative movement that wants to be taken seriously on the First Amendment has to defend the principle in the hard case, not only the easy one. If we want the protection when a campus mob wants us silenced, when a regulator wants our speech labelled misinformation, when a donor list is demanded, when a pastor's sermon is called hate, then we have to want it for the people we like least. The rule is indivisible.

This is also the reason that the lesson of the Founding is so central. The First Amendment says Congress shall make no law abridging the freedom of speech, or of the press. It was written by men who had seen what a government can do to critics. The Brandenburg test is the modern working form of that text: speech is free, and the narrow exceptions are for speech that is itself an instrument of imminent crime.

For related ground, Snyder v. Phelps and the Hardest Free Speech Case Conservatives Ever Defended shows the Court protecting speech nearly all of us find vile. Texas v. Johnson Protected Flag Burning, and Conservatives Still Argue It tells the flag-burning case. Hustler v. Falwell Protected Parody, and Conservatives Benefit From It Now covers a parody that wounded a pastor and a Court that protected it anyway. The Campus Hearing Where Three Presidents Could Not Answer a Simple Question shows what happens when a university cannot say where its own line is, and Speech, Pronouns and Compelled Words, Where the First Amendment Draws the Line covers compelled speech. For the Court's role in the story, see the courts page.

The case in brief

1. Brandenburg v. Ohio (June 9, 1969) reversed the conviction of a Klan leader under Ohio's criminal syndicalism law, because the law punished mere advocacy.
2. The Court held that the government may not punish advocacy of force or law violation unless it is directed to inciting imminent lawless action and is likely to produce it, which overruled Whitney v. California (1927).
3. The earlier regime of Schenck (1919) and Dennis (1951) let the government punish radicals for speech that might someday cause harm, and it was used against the powerless and the unpopular.
4. Threats, intimidation and true incitement remain punishable, so the rule protects ideas without protecting crime.
5. A narrow incitement rule shields every dissenter, including conservatives, from a prosecutor who dislikes what they say.

What you can do: read the text of the First Amendment and the first page of the Brandenburg opinion, then say aloud, to yourself, which speech you would defend if the speaker were your opponent.