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

• Author: Susan M. Gilles
• Position: Professor Emeritus John E. Sullivan Professor of Law, Capital University Law School. LL.B. 1981, University of Glasgow; LL.M. 1982, Harvard Law School
• Pages: 517-533

BRANDENBURG V. STATE OF OHIO:

AN “ACCIDENTAL,” “TOO EASY,” AND “INCOMPLETE”

LANDMARK CASE

SUSAN M. GILLES1

I.BACKGROUND

A.The Meeting and the Conviction

On June 28, 1964, Clarence Brandenburg held a Ku Klux Klan rally on

a farm in rural Hamilton County, Ohio.1 He invited a Cincinnati television

reporter, whose film of the Klan meeting was televised both locally and

nationally.2 The film showed twelve hooded figures, some carrying

firearms, gathered around a burning cross, muttering words of racial hatred

and veiled threats.3 Then Brandenburg, in Klan robes, spoke to the group

of armed Klans men.4 Brandenburg 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 organization, but if our President, our Congress,

Copyright © 2010, Susan M . Gilles

1Susan 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 lles@law.capital.edu). 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.

1Brandenburg 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).

2Brandenburg, 395 U.S. at 445.

3See 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.

4Id. at 445–46.

5Id. at 446.

518CAPITAL UNIVERSITY LAW REVIEW [38:517

our Supreme Court, continues to suppress the white, Caucasian race, it’s

possible that there might have to be some revengeance taken.”6

He added that the group was planning a large march (“four hundred

thousand strong”) on July 4th, some six days later, on Congress, and from

thence to Florida and Mississippi.7

The State of Ohio indicted Brandenburg under Ohio’s Criminal

Syndicalism Act and charged him withadvocating the propriety of

violence “as a means of accomplishing . . . political reform.”8The

prosecution’s case seemed airtight. The State introduced the film of the

meeting, testimony identifying Brandenburg as the hooded speaker, several

guns, and the red Klan hood worn by Brandenburg.9 Brandenburg was

convicted by a jury, fined $1000, and sentenced to one to ten years in

prison.10 Brandenburg appealed, arguing that Ohio’s Criminal Syndicalism

Act violated the First and Fourteenth Amendments, but the Ohio cou rts

rejected his challenge.11

B.The Supreme Court’s Opinion

The United States Supreme Court reversed, and in a unanimous, per

curiam opinion, held Ohio’s statute unconstitutional: “[W]e are here

confronted with a statute which, by its own words and as applied, purports

to punish mere advocacy . . . . Such a statute falls within the condemnation

of the First and Fourteenth Amend ments.”12

The Court distinguished between “advocacy,” which was

constitutionally protected, and “incitement to imminent lawless action,”

6Id.

7Id. 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.

8Id. 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.

9Id. at 445.

10Id. at 444–45.

11Id. at 445.The Ohio Supreme Cou rt dismissed sua sponte, concluding th at “‘no

substantial constitutional qu estion exists herein.’”Id.

12Id. at 449.