While Americans have the right to free speech under the First Amendment, that right has exceptions and qualifications. The First Amendment does not protect speech that seeks to incite immediate violence, for example. But what is the line between inciting violence and stating your opinions forcefully? It is a complex and nuanced area of the law.
The most notable case involving this question is Brandenburg v. Ohio, decided in 1969. Under what has become known as the Brandenburg test, the Supreme Court has said that the First Amendment does not protect speech that is "directed to inciting or producing imminent lawless action and is likely to incite or produce such action."
Facts of the Case
A leader of the Ku Klux Klan made an incendiary speech at a Klan rally. Clarence Brandenburg was 48 when he was captured on camera in 1964 making anti-Semitic and anti-Black remarks. As he was a member of the American Nazi party, this wasn't particularly surprising. However, Brandenburg also said that while "We're not a revengent (sic) organization . . . if our President, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, it's possible that there might have to be some revengeance (sic) taken.
He was prosecuted and convicted for these statements under Ohio's Criminal Syndicalism law, which prohibited advocating for, among other things, domestic terrorism to accomplish industrial or political goals. Syndicalism refers to a movement for transferring the ownership and control of the means of production and distribution to workers' unions. Many states passed similar laws in response to global movements advocating for trade unions, communism, and fascism.
Both the state's Court of Appeals and the Ohio Supreme Court declined to overturn his conviction. The American Civil Liberties Union then took up Brandenburg's case and appealed it to the U.S. Supreme Court. In a per curiam opinion, the U.S. Supreme Court justices agreed that Ohio's law was unconstitutional and overturned Brandenburg's conviction.
A Quick Summary of Limitations on the First Amendment
Brandenburg alleged that Ohio's Syndicalism law violated his First Amendment rights. The First Amendment of the U.S. Constitution holds that:
"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."
This restriction on prohibiting the freedom of speech applies to the states as well through the Fourteenth Amendment. As such, no state or federal government, or government agency, can restrict the right to free speech. However, the freedoms granted in the First Amendment are not, and have never been, absolute. There are two types of restrictions on speech that courts have held is permissible:
- Time, manner and place restrictions, and
- Content-based restrictions
Generally, it is easier for the government to pass laws restricting the time, manner, and place of speech. For example, states and municipalities can prohibit demonstrations in the early morning or late evening, regardless of what people are gathering to protest. These prohibitions must be content-neutral, however, or it is a content-based restriction on speech.
Content-based restrictions on speech are presumed by courts to be unconstitutional and are subject to strict scrutiny, the Court's highest level of scrutiny. Ohio's Syndicalism law was a content-based restriction. Still, courts have found some content-based restrictions on speech are permissible. Namely, laws against obscenity, child pornography, and incitement to imminent unlawful action. It is this last category which the justices took up in Brandenburg.
The "Clear and Present Danger" Test and History of Incendiary Speech
There are a number of important Supreme Court cases dealing with incendiary or violent speech. The two below are the most relevant to Brandenburg:
- In Schenck v. United States, a 1919 Supreme Court case, Justice Oliver Wendell Holmes formulated the "clear and present danger" test. In that decision, Charles Schenck's conviction for violating the Espionage Act was upheld. Schenck had distributed leaflets urging his fellow Americans to refuse the draft. Justice Holmes, writing for the unanimous court, held that laws can infringe on an individual's First Amendment right if it involves a clear and present danger to others. As an example of permissible restrictions, Justice Holmes famously offered the example of prohibiting someone from shouting "fire!" in a crowded theater to cause panic when there is no fire.
- In Dennis v. United States, the Supreme Court revised the "clear and present danger" test to include a "balancing test." In this 1951 decision, which involved Communist Party members, the court held that judges must balance the "gravity of the evil" compared to its probability of occurring in order to determine whether the government is justified in preventing the speech.
That was the state of the law when the U.S. Supreme Court took up the Brandenburg case. While generally reluctant to overturn precedent, here, the justices held that an alternate test was needed to determine whether a law that prohibits content-based restrictions on speech is constitutional.
The Decision and Significance of Brandenburg v. Ohio
The Court in Brandenburg, in a per curiam opinion, held that Ohio's Syndicalism law violated the First Amendment. According to the Court, "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."
In other words, there is a two-part test courts must use to determine if a law prohibiting speech is constitutional:
- The speech must incite imminent lawless action; AND
- It must be likely to do so
Both parts of the Brandenburg test must be met for the government to permissibly restrict the speech.
In the Brandenburg case, the justices found that Ohio's Syndicalism law did not pass the test. That law punished people who generally advocated for violence, not just those who were about to incite imminent lawless action. Merely advocating for violence at some unclear future time and place was not enough. Since the law was unconstitutional, the Supreme Court overturned Brandenburg's conviction, and he was able to walk away. In doing so, the Supreme Court specifically overturned Whitney v. California, a 1927 case that held a similar law in California was constitutional.
Since this case, courts have used the Brandenburg test to determine whether the government can convict someone for violent rhetoric. It can be a high bar. For example, in the 1982 case NAACP v. Claiborne Hardware Co., the Supreme Court applied the Brandenburg test to hold that a member who threatened – but did not specifically call for - violence against members who refused to boycott white businesses was protected under the First Amendment since it did not incite imminent lawless action.
Did Brandenburg Overturn Dennis v. United States?
It is not entirely clear is how the justices in Brandenburg viewed the Dennis precedent. Were courts still supposed to use the Dennis balancing test? While the Court treated Dennis as good law in its decision, the Brandenburg opinion effectively replaced the Dennis balancing test. This was the result that Justices Hugo Black and William Douglas desired, at least. Those two justices wrote concurring opinions in Brandenburg, with Justice Black writing that the "clear and present danger doctrine should have no place in the interpretation of the First Amendment." Justice Black got his wish.
Brandenburg Test Still Litigated
The Brandenburg test is a nuanced legal doctrine that remains litigated to this day. For example, in 2002, the Supreme Court declined to hear a case involving the Brandenburg test. But, Justice Stevens wrote in the denial of certiorari that violent rhetoric which involved long-term planning "certainly may create significant public danger." However, Justice Stevens acknowledged that the Supreme Court had yet to elaborate on just what kind of long-term planning would pass the Brandenburg test.
Current restrictions on speech may also give rise to questions about First Amendment protections under Brandenburg. For example, speech policies at public universities may call into question whether these codes are only restricting speech that incites imminent lawless action, or instead prohibiting viewpoint-based.
You can read the full opinion of Brandenburg v. Ohio on FindLaw..