Brandenburg v. State of Ohio: An 'Accidental', 'Too Easy', and 'Incomplete' Landmark Case

AuthorSusan M. Gilles
PositionProfessor Emeritus John E. Sullivan Professor of Law, Capital University Law School. LL.B. 1981, University of Glasgow; LL.M. 1982, Harvard Law School
A. The Meeting a nd the Convictio n
On June 28, 19 64, Clarence Brandenburg held a Ku Klux Klan rally on
a farm in rural Hamil ton County, Ohio.1 He invited a Cincinnati television
reporter, whose film of the Klan me eting was t elevised both locally and
nationally.2 The film showed twelve ho oded figures, s ome carrying
firearms, gathered around a burning cros s, muttering words of racial hatred
and veil ed thre ats.3 Then Brandenburg , in Klan robes, spoke to th e group
of armed Klans men.4 Bran denburg announced that it was “an organizers’
meeting,” and asserted that “[t]he Klan h as more members in the State of
Ohio than does any other organization.”5 Then he uttered his threat:
We’re not a revengent o rganization, but if our President, our Congress,
Copyright © 2010, Susan M . Gilles
1 Susan Gilles, Professor E meritus John E. Sullivan Professo r of Law, Capital
University Law School. LL.B. 1981, University of G lasgow; LL.M. 1982, Harvard Law
School (sgi I am indebted to Professor Dan Kobil for his insightful
edits; to Professors A kil Amar and Vince Blasi for their thought-provo king presentations;
and to Chelsea Long for he r excellent research assistance.
1 Brandenburg v . Ohio, 395 U.S. 4 44, 445 (1969); Brief for Appellant at 4,
Brandenburg v. Ohio, 395 U.S. 444 (1969) (No. 492 ) (“The events upon which the
conviction was based were depicted at trial in two films that wer e offered into eviden ce by
the state. The announcer-reporter who helped m ake the film testified that h e had received a
telephone invi tation from an unknown party to appear at a rally, identified to him as a Ku
Klux Klan meeting to be held on private property. He testified that on June 28, 1964 he
helped make a sound film of portions of the meeting for showing on television with the
consent and cooperation of th e persons participating.”) (internal citations om itted).
2 Brandenburg, 395 U.S. at 445.
3 See id. at 44 5–46 & n.1. The film recorded muttered racist threats including:This is
what we are going to do to the niggers”; “Send the Jews back to Israel”; “Bury the niggers”;
“Freedom for the whites”; and “Nigger w ill have to fight for ever y inch he gets from now
on.Id. at 446 n.1.
4 Id. at 445–46.
5 Id. at 446.
our Supreme Cou rt, continues t o suppress the white, Caucasian race, it’s
possible that th ere might have to b e some revenge ance taken.”6
He added that the group was p lanning a large march (“four hundred
thousand strong”) on July 4th, some six days l ater, on Congress, and f rom
thence to Florida an d Mississip pi.7
The State of Ohio indicted Branden burg under Ohio’s Crimi nal
Syndicalism Act and charged him with advocating the propriety of
violence “as a means of accomplis hing . . . politi cal reform.”8 Th e
prosecution’s case seemed airti ght. The State introduced the film of the
meeting, testimon y identifying Bran denburg as th e hooded sp eaker, several
guns, and the red Klan hood worn by Brandenburg. 9 Brand enburg was
convicted by a jury, fined $1000, and sentenced to one to ten years in
prison.10 Brandenburg appealed, arguing that Ohio’s Criminal Synd icalism
Act violated the First and Fourteenth Amendments, but the Ohio cou rts
rejected his challen ge.11
B. The Supreme Court’s Opini on
The United St ates Supreme Court revers ed, and i n a unanimou s, per
curiam opinion, held Ohio’s statute unconstitutional: “[W]e are here
confronted with a s tatute whi ch, by its own words and as applied, p urports
to punish mere advocacy . . . . Such a statut e falls within the condemnation
of the First and Fo urteenth Amend ments.”12
The Court distinguis hed between “advocacy,” which was
constitutionall y protected, and “incitement to imminent lawless acti on,”
6 Id.
7 Id. A second film segment showed Brandenburg making the same speech, although
this time he omitted the call for revenge, and instead closed with: “ Personally, I believe the
nigger should be returned to Africa, the Jew returned to Israel.” Id. at 447.
8 Id. at 444–45 (quoting OHIO REV. CODE ANN. § 2923.13 (West 1964 ) ( repealed
1974)). The first cou nt ch arged that Brandenburg “did unlawfully by word of mouth
advocate the n ecessity, or propriety of crime, violence, or unlawful methods of terrorism as
a mean s of accomplishing po litical reform.” Id. at 449 n.3. “The second count charged
that [Brandenburg] ‘did unlawfully voluntarily assemble with a group or assemblage of
persons formed to advoca te the doctrines of criminal syndicalism.’” Id.
9 Id. at 445.
10 Id. at 444–45.
11 Id. at 445. The Ohio Supreme Cou rt dismissed sua sponte, concluding th at “‘no
substantial constitutional qu estion exists herein.’” Id.
12 Id. at 449.

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