Brandenburg v. Ohio is a 1969 Supreme Court case about the limits of political speech under the First Amendment. The case matters because it protects even hateful or offensive advocacy unless it is closely tied to immediate illegal action.
It set a stronger rule for free speech than earlier tests and became a foundation for modern civil liberties law. Students studying this case learn how courts balance public safety with constitutional freedom.
Key Facts
- Case: Brandenburg v. Ohio, 395 U.S. 444 (1969).
- The Supreme Court ruled that advocacy of illegal action is protected unless it is directed to inciting imminent lawless action and is likely to produce such action.
- The Brandenburg test has two main parts: intent to incite imminent lawless action and likelihood that the action will occur.
- The decision replaced the broader clear and present danger approach used in earlier free speech cases.
- Abstract advocacy of violence or illegal conduct is usually protected speech under the First Amendment.
- True threats, incitement, obscenity, defamation, and certain forms of harassment can still fall outside full First Amendment protection.
Vocabulary
- First Amendment
- The part of the U.S. Constitution that protects freedoms including speech, press, religion, assembly, and petition.
- Incitement
- Speech intended to cause others to commit illegal action, especially when that action is immediate and likely.
- Imminent lawless action
- Illegal conduct that is expected to happen very soon as a result of speech.
- Clear and present danger
- An older legal test that allowed punishment of speech when it posed a serious and immediate threat.
- Per curiam opinion
- A court opinion issued in the name of the Court rather than signed by a specific justice.
Common Mistakes to Avoid
- Thinking all offensive speech can be banned, which is wrong because the First Amendment often protects hateful or unpopular ideas unless they meet a narrow legal exception.
- Forgetting the word imminent, which is wrong because Brandenburg requires the illegal action to be immediate or very near in time, not just possible someday.
- Treating advocacy and incitement as the same thing, which is wrong because general support for illegal ideas is usually protected while intentional, likely, immediate encouragement of lawbreaking may be punished.
- Using the clear and present danger test as the modern rule, which is wrong because Brandenburg created the stricter imminent lawless action test for incitement.
Practice Questions
- 1 A speech is given at 2:00 p.m. and the speaker tells a crowd to destroy a courthouse at 2:05 p.m. If 60 out of 100 listeners begin moving toward the courthouse, which parts of the Brandenburg test seem most clearly satisfied?
- 2 A city reviews 12 protest speeches. In 3 speeches, the speaker directly urges immediate violence and the crowd is likely to act. What fraction and percentage of the speeches could potentially meet the Brandenburg incitement standard?
- 3 Explain why a speech that praises a revolution in general terms is usually treated differently from a speech that tells an angry crowd to attack a specific building immediately.