Global Freedom of Expression


Brandenburg v. Ohio

Closed Expands Expression

Key Details

  • Mode of Expression
  • Date of Decision
    June 9, 1969
  • Outcome
    Law or Action Overturned or Deemed Unconstitutional
  • Case Number
    395 U.S. 444
  • Region & Country
    United States, North America
  • Judicial Body
    Supreme (court of final appeal)
  • Type of Law
    Criminal Law, Constitutional Law
  • Themes
    Content Regulation / Censorship, Freedom of Association and Assembly / Protests, Hate Speech, Public Order, Political Expression
  • Tags
    First Amendment, Incitement, Violence, Racism, Content-Based Restriction

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Case Analysis

Case Summary and Outcome

Brandenburg was convicted of violating the Ohio Criminal Syndicalism Act for derogatory phrases that he uttered at a Ku Klux Klan rally. The Ohio Criminal Syndicalism Act outlawed “advocating” violence as a way to change political and economic situations, and prohibited individuals from assembling for the purpose of advocating criminal syndicalism. The Supreme Court held that the act violated the First Amendment for failing to distinguish between mere advocacy and incitement to imminent lawless action.


Brandenburg, who was a leader in the Ku Klux Klan, made a speech at a rally that advocated violence. As a result of the speech, Brandenburg was criminally charged under the Ohio Criminal Syndicalism Act. The Act prohibited individuals from advocating for “crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform,” and “voluntarily assembl[ing] with any society, group, or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism.”

Brandenburg was convicted, fined $1000, and sentenced to 1-to-10 years of imprisonment. He challenged the constitutionality of the Criminal Syndicalism Statute under the First and Fourteenth Amendments to the United States Constitution. The intermediate appellate court of Ohio affirmed his conviction without opinion. The Supreme Court of Ohio dismissed his appeal.

Decision Overview

Per Curiam. The U.S. Supreme Court found that the Ohio law violated Brandenburg’s right to freedom of speech. The Court used a two-pronged test to evaluate laws affecting speech acts: 1. speech can be prohibited if its purpose is to incite or produce imminent lawless action; and 2. doing so is likely to incite or produce such an action. Additionally, the Court found that abstract discussions are not the same as actually preparing or inciting individuals to engage in illegal acts.

Decision Direction

Quick Info

Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.

Expands Expression

The First Amendment protects speech to the extent that the speaker is not inciting others to engage in violent or illegal acts. This is important because it gives individuals the right to speak about unpopular positions — and to do so vehemently and feverishly — so long as no actual threat of violence or unlawful action is present.

Global Perspective

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Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.

National standards, law or jurisprudence

  • U.S., Whitney v. California, 274 U.S. 357 (1927)
  • U.S., Fiske v. Kansas, 274 U.S. 380 (1927)
  • U.S., Dennis v. United States, 341 U.S. 494 (1951)
  • U.S., Noto v. United States, 367 U.S. 290 (1961)

Case Significance

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Case significance refers to how influential the case is and how its significance changes over time.

The decision establishes a binding or persuasive precedent within its jurisdiction.

All lower state and federal courts are required to follow the opinions of the United States Supreme Court.

The decision was cited in:

Official Case Documents

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