Brandenburg V. Ohio - Background

Background

Clarence Brandenburg, a Ku Klux Klan (KKK) leader in rural Ohio, contacted a reporter at a Cincinnati television station and invited him to come and cover a KKK rally in Hamilton County in the summer of 1964. Portions of the rally were filmed, showing several men in robes and hoods, some carrying firearms, first burning a cross and then making speeches. One of the speeches made reference to the possibility of "revengeance" against "niggers," "Jews," and those who supported them. One of the speeches also claimed that "our President, our Congress, our Supreme Court, continues to suppress the white, Caucasian race," and announced plans for a march on Washington to take place on the Fourth of July. Brandenburg was charged with advocating violence under Ohio's criminal syndicalism statute for his participation in the rally and for the speech he made. In relevant part, the statute – enacted in 1919 during the First Red Scare – proscribed "advocat ... the duty, necessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform" and "voluntarily assembl with any society, group or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism."

Convicted in the Court of Common Pleas of Hamilton County, Brandenburg was fined $1,000 and sentenced to one to ten years in prison. On appeal, the Ohio First District Court of Appeal affirmed Brandenburg's conviction, rejecting his claim that the statute violated his First Amendment and Fourteenth Amendment right to freedom of speech. The Supreme Court of Ohio dismissed his appeal without opinion.

The rather cursory way in which the Ohio courts dismissed Brandenburg's constitutional arguments is unsurprising in light of the state of First Amendment law in the pre-Brandenburg era. Although Yates v. United States, 354 U.S. 298 (1957), had overturned the convictions of mid-level Communist Party members in language that seemed suggestive of a broader view of freedom of expression rights than had been accorded them in Dennis v. United States, 341 U.S. 494 (1951), all Yates purported to do was construe a federal statute, the Smith Act. Thus, Dennis's reading of the First Amendment remained in force: advocacy of law violation, even as an abstract doctrine, could be punished under law consistent with the free speech clause.