Brandenburg v. Ohio, 395 U.S. 444 (1969)
Author: Sam Biers

Facts: Df was the leader of KKK group in OH.  He telephoned a TV station and invited a reporter to attend a rally with a camera man.  Portions of the film were later broadcast showing 12 hooded figures, some w/ guns, gathered around a large wooden cross that was burnt.  Most of the words were garbled, but scattered phrases were understood as derogatory toward Af-Ams and Jewish-Ams.  Df was seen making a speech conditioning future action on the acts of executive, legislative, and judicial branches of Govt.  2^nd film made similar assertions against Af and Jews.

Issue(s): Whether OH’s statute can punish advocacy without defining or distinguishing advocacy that involves incitement to imminent lawless action? 

Holding: No, the statute punishes mere advocacy and forbids assembly with others who merely advocate the type of action in violation of 1^st and 14^th Amends.

Procedure: Convicted under OH law for advocating the duty, necessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism to accomplish change, and for assembling w/ any group for that purpose–criminal syndicalism. Fined $1K and sentenced 1-10 years.  OH intermediate app. Ct Affirmed; OH S.Ct dismissed appeal b/c no Const’l issue; USSCt Reversed.

 Rule(s): 1^st and 14^th Amend.

Rationale: Hx’ly advocating violent means to effect political and social change involves a danger to the security of a state which allows a state to outlaw that activity.  But, free speech and free press principles do not allow states to forbid advocacy of the use of force or illegality EXCEPT when advocacy is directed to inciting or producing imminent lawless action and is likely to produce that effect.

However, abstract teaching for others to resort to force and violence is not the same as preparing a group for violent action and preparing for that result.  A statute which does not distinguish between the types of advocacy impermissibly intrudes on the 1^st and 14^th Amend guarantees.

CONCURRENCE: J. Black, No Clear and Present Danger Test when interpreting the 1^st Amend.

J. Douglas, ditto b/c threats are made serious only by judges who are aligned with the status quo, and the test is twisted so as to make teachers of Marxism all out political trials. Apart from rare instances, speech is immune from prosecution. There is no line between advocacy of abstract ideas (Yates) and advocacy of political action (Scales). Govt has no power to invade the sanctuary of belief and conscience.