Home Kids Brandenburg v. Ohio

Brandenburg v. Ohio

Brandenburg v. Ohio

Brandenburg v. Ohio: The Landmark Case Defining the Boundaries of Free Speech


In the United States, the First Amendment of the Constitution stands as a pillar of democratic society, protecting the cherished right to freedom of speech. However, the boundaries of this fundamental right have been tested and refined through a series of landmark Supreme Court cases. One such case is Brandenburg v. Ohio, a crucial decision that has had a profound impact on the interpretation of free speech in the country.

This article delves into the background, facts, legal arguments, and the significance of the Brandenburg v. Ohio case, drawing from government resources and expert opinions to provide a comprehensive understanding of how it shaped the landscape of free speech jurisprudence in the United States.


In the tumultuous backdrop of the 1960s, the civil rights movement was in full swing, and various advocacy groups were emerging to voice their concerns and demands for social change. The Ku Klux Klan, a white supremacist organization, was one such group, known for its history of racial violence and hatred.

Clarence Brandenburg, a leader of the Ku Klux Klan in Ohio, found himself at the center of a pivotal legal battle. On June 28, 1964, Brandenburg organized a rally in rural Ohio attended by about a dozen Klan members. This event was filmed by a local television reporter, and the footage captured inflammatory and racially charged speeches made by Brandenburg and others present at the rally. In his speech, Brandenburg used derogatory language against African Americans and Jewish people and called for “revengeance” against the government.

Subsequently, Brandenburg was convicted under Ohio’s criminal syndicalism law, which prohibited advocating violence or terrorism as a means of political change. He was sentenced to one to ten years in prison for violating this law. Brandenburg’s case then made its way to the United States Supreme Court, leading to a landmark decision that would redefine the boundaries of free speech in America.

Legal Arguments

The central issue before the Supreme Court in Brandenburg v. Ohio was whether Clarence Brandenburg’s conviction under Ohio’s criminal syndicalism law violated his First Amendment rights to free speech.

The First Amendment states, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” While the language appears clear, the interpretation of what constitutes protected speech has been the subject of many legal disputes.

The Court had to determine whether Brandenburg’s speech at the Klan rally fell within the realm of protected speech or if it constituted a “clear and present danger” to society, thus justifying limitations on his First Amendment rights.

The Majority Opinion

In a unanimous decision, the Supreme Court ruled in favor of Clarence Brandenburg. Justice William O. Douglas, writing for the Court, established a new and more restrictive test for determining when speech can be restricted under the First Amendment. The Court held that the Ohio criminal syndicalism law, as applied to Brandenburg’s speech, was unconstitutional because it violated his right to freedom of speech.

Justice Douglas’s opinion introduced what is now known as the Brandenburg Test, which has had a lasting impact on free speech jurisprudence in the United States. The test stipulates that speech can only be prohibited if it incites or produces “imminent lawless action” and is likely to do so. In other words, the government cannot suppress speech unless it directly calls for and is likely to result in immediate violence or illegal activity.

This ruling marked a significant departure from previous standards, such as the “clear and present danger” test established in Schenck v. United States (1919) and later refined in cases like Whitney v. California (1927). Under the Brandenburg Test, speech that is merely inflammatory or offensive, without a direct and imminent call to violence, is protected by the First Amendment.

The Significance of Brandenburg v. Ohio

Brandenburg v. Ohio has had far-reaching consequences for the interpretation of free speech rights in the United States. Its significance lies in several key areas:

  1. Clarity of Standards: The Brandenburg Test provides a clearer and more precise standard for determining when speech can be restricted. It narrows the circumstances under which the government can limit speech, focusing on the immediacy of any potential harm.
  1. Protection of Controversial Speech: The decision underscores the importance of protecting even the most controversial and offensive forms of speech, as long as they do not directly incite violence or lawlessness. This protection extends to hate speech, political rhetoric, and advocacy for unpopular ideas.
  1. Shift in Free Speech Jurisprudence: Brandenburg v. Ohio effectively shifted the legal landscape, moving away from broader and more subjective tests like the “clear and present danger” standard. The new test better aligns with the principle that the government should not interfere with speech unless there is a compelling reason to do so.
  1. Preservation of Political Dissent: By protecting the rights of individuals to express extreme or unpopular views, the Brandenburg Test helps preserve the essential role of political dissent in a democratic society. It allows citizens to challenge the status quo and advocate for change without fear of censorship.
  1. Limiting Prior Restraint: The case reaffirmed the Court’s reluctance to impose prior restraint on speech, emphasizing that the government should not suppress expression before it occurs but should instead address any harm caused by the speech after the fact.
  1. Impact on Subsequent Cases: Brandenburg v. Ohio has been cited in numerous subsequent Supreme Court decisions that involve free speech issues. It continues to shape the legal framework for evaluating restrictions on speech, influencing how courts across the nation adjudicate similar cases.

Critics and Controversies

While Brandenburg v. Ohio is celebrated by many as a landmark decision in the protection of free speech, it has also faced criticism and controversies. Some argue that it sets a high bar for government intervention, potentially allowing dangerous speech to flourish under the protection of the First Amendment. Others believe that it fails to adequately address the harms caused by hate speech and extremist rhetoric.

Critics argue that the Brandenburg Test does not consider the long-term and cumulative effects of inflammatory speech, which may contribute to an atmosphere of hatred and violence even without an immediate call to action. They contend that the First Amendment should be interpreted in a way that balances the protection of free speech with the prevention of harm to individuals and society as a whole.

Additionally, there have been ongoing debates about how the Brandenburg Test applies in the digital age, where communication and dissemination of extremist content can happen rapidly and on a global scale. Some argue that the traditional boundaries of free speech may need to be reevaluated in light of modern technology and the potential for online radicalization.


Brandenburg v. Ohio stands as a pivotal moment in the history of free speech jurisprudence in the United States. Through this case, the Supreme Court established the Brandenburg Test, which redefined the boundaries of protected speech and placed a higher burden on the government to justify restrictions. This decision has had a lasting impact on the protection of controversial and offensive speech, the preservation of political dissent, and the limitations on government intervention in matters of expression.

While the case has faced criticism and ongoing debates about its implications in the digital age, it remains a cornerstone of First Amendment law.


The Brandenburg v Ohio case was a landmark decision by the United States Supreme Court that had a significant impact on the First Amendment rights of American citizens. The case involved the right to free speech in the context of potentially inflammatory or dangerous messages, and the Supreme Court’s decision in Brandenburg v Ohio established a new standard for determining when speech is protected by the First Amendment and when it may be restricted by the government.


In 1964, Clarence Brandenburg, a leader of the Ku Klux Klan in Ohio, was arrested and charged with advocating for violence, hatred, and lawlessness, in violation of Ohio’s criminal syndicalism law. Brandenburg, whose activities included rallies featuring violent and inflammatory rhetoric, was convicted and sentenced to 10 years in prison.

Brandenburg’s case was appealed to the Supreme Court, which agreed to hear the case to determine whether Ohio’s criminal syndicalism law violated the First Amendment’s protection of free speech.

The Brandenburg Test

The Supreme Court’s decision in Brandenburg v Ohio established a new test for determining when speech advocating for unlawful conduct may be restricted by the government. The test, known as the Brandenburg Test, requires that speech may only be restricted if it is:

1) Directed at inciting or producing imminent lawless action
2) Likely to incite or produce such action

The Brandenburg Test represented a significant departure from prior Court decisions on the subject of protected speech. Previous tests had required a much lower threshold for restricting speech, allowing for restrictions on speech that was merely considered “dangerous.”

Impact and Legacy

The Brandenburg decision had a significant impact on the application of the First Amendment to speech that advocates for violence or other forms of unlawful conduct. The Court’s new test provided a detailed framework for determining when such speech may be restricted. The Brandenburg Test is now widely considered to be the standard for determining when speech is protected by the First Amendment and when it may be restricted by the government.

The Brandenburg decision has been cited in many subsequent cases, including in cases related to hate speech and speech that advocates for terrorism or other forms of violent or unlawful conduct. The decision has also been influential in debates over the limits of free speech in the context of the social and political climate of the United States.


Brandenburg v Ohio was a landmark case that established a new standard for determining when speech advocating for violence or unlawful conduct may be restricted by the government. The Brandenburg Test provided a framework that is still used to this day in deciding cases related to the First Amendment and free speech.

By establishing a higher threshold for restricting speech that advocates for violence or unlawful conduct, the Brandenburg decision helped to protect the First Amendment rights of American citizens. The decision has been influential in subsequent cases and in debates over the proper limits of free speech in the United States.

Brandenburg V. Ohio: The Background

Clarence Brandenburg was a leading member of the Ku Klux Klan (a very mean-spirited group of radicals). His group was located in the woods of Cincinnati. When Brandenburg’s Klan formed a rally, the man contacted a local news station in Cincinnati and invited the organization to cover the Klan’s rally.

The news station arrived at the rally and began filming the events. This filming resulted in the broadcast of a very hateful demonstration, filled with hate-speech and racist actions. This filming was broadcasted live to residents of the Ohio city. In reaction to the hateful speech, a number of residents called the news station and complained about the broadcast.

Clarence Brandenburg was arrested for forming and participating in the rally and for asking a news station to film the hateful meeting. Brandenburg broke the state’s law which prohibited the publication of any hateful or violent showing. Mr. Brandenburg appealed the charges against him by claiming his action were not criminal in nature.

The aspect of criminal intent was the main factor in this case. Did Brandenburg intend to commit a crime? Was he in violation of his free speech rights? Is it illegal to broadcast hateful and racist speech to American homes via the television?

Brandenburg v. Ohio: The Trial

The Brandenburg v. Ohio trial took place on February 27th of 1967. Clarence Brandenburg was accused of broadcasting a hateful showing. Brandenburg appealed these charges by claiming he was protected under his 1st Amendment Rights. He claimed his rights as an American citizen were violated when he was arrested and that he was unjustly punished for non-violent and non-criminal expressions.

Brandenburg V. Ohio: The Verdict

The United States Supreme Court ruled in favor of Clarence Brandenburg stating Ohio laws that prohibited the delivery of expression and speech directly violated the 1st Amendment to the United States Constitution. Within this ruling, the United States Supreme Court was sure to distinguish between violent acts and hateful speech that implied violence.

Although the Ku Klux Klan’s rally was hateful, the sentiments expressed were not deemed by the United States Supreme Court to be of an immediate danger to those around the rally.

The 1st Amendment was the reason why Brandenburg v. Ohio favored Brandenburg. The 1st Amendment of the United States Constitution ensures that every citizen of the U.S. is granted the freedom to express themselves so long as it does not pose a threat on anyone else. The speech or expression also cannot be delivered with a threat of violence.