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Brandenburg v. Ohio | Study Guide

United States Supreme Court

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United States Supreme Court

Year Decided



Primary Source


U.S. Supreme Court Case

At a Glance

  • Clarence Brandenburg, a Ku Klux Klan leader in Ohio, spoke at a small rally in 1964.
  • The rally participants wore hoods and burned a cross; some carried weapons.
  • Brandenburg made racist remarks and spoke of revenge for offences against whites.
  • He expressed anger at President Lyndon B. Johnson (1908-1973), Congress, and the Supreme Court and discussed plans to march on Washington, D.C., Florida, and Mississippi.
  • He was convicted of advocating violence and assembling for the purpose of violent political reform, which violated the Ohio criminal syndicalism statute, a law prohibiting actions that seek to encourage illegal behavior and violence.
  • The Supreme Court's ruling in Brandenburg v. Ohio focused on the difference between speech that defends or argues for violence and speech that actually leads to illegal activity.
  • The court ruled that Brandenburg's right to free speech had been violated and that the Ohio criminal syndicalism statute was unconstitutional.
  • In his concurrence, Justice William O. Douglas (1898–1980) discredited the longstanding "clear and present danger" test for the restriction of free speech.
  • Douglas described how the "clear and present danger" test gave prosecutors too much power to define whether a person's expression of thoughts and beliefs includes harmful intentions.
  • In place of "clear and present danger," the court established a new test for determining when inflammatory speech may be prohibited. The Brandenburg Test requires that speech both incite and likely produce "imminent lawless action." The test is the case's best-known legacy.


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