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Law School Case Brief

Brandenburg v. Ohio - 395 U.S. 444, 89 S. Ct. 1827 (1969)

Rule:

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.

Facts:

Petitioner Brandenburg, a leader of a Ku Klux Klan group, spoke at a Klan rally at which a large wooden cross was burned and some of the other persons present were carrying firearms. His remarks included such statements as: "Bury the niggers," "the niggers should be returned to Africa," and "send the Jews back to Israel." In an Ohio state court, he was convicted under Ohio's criminal syndicalism statute for advocating 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 assembling with any society, group, or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism. Although he challenged the constitutionality of the criminal syndicalism statute under the First and Fourteenth Amendments to the Federal Constitution, an intermediate Ohio appellate court affirmed his conviction without opinion. The Supreme Court of Ohio dismissed his appeal on the ground that no substantial constitutional question was presented.

Issue:

Was Ohio Rev. Code Ann. § 2923.13 unconstitutional?

Answer:

Yes.

Conclusion:

The Supreme Court of the United States held that because Ohio's criminal syndicalism statute did not draw a distinction between teaching the need for force or violence and preparing a group for violent action, the statute unconstitutionally intruded on the rights guaranteed by the U.S. Const. amends. I and XIV. As a result, the Court reversed Brandenburg's conviction because the statute upon which his conviction was based was unconstitutional.

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