Key Documents: Section I. Journalism, Media, and the Law - Clear and Present Danger Speech

Introduction

The judicial question of exactly when speech becomes actionable or seditious, and exceeds the protection of the First Amendment, has plagued American courts and journalists from the nation's inception. Justice Oliver Wendell Holmes, in a 1919 unanimous Supreme Court decision for Schenck v. United States, argued that governments were obligated to prohibit speech that posed “a clear and present danger” to the country. However, the tests for when speech becomes threatening enough to constitute a clear and present danger remained inconsistent for 50 years until the decision in Brandenburg v. Ohio created a distinct measuring stick.

The Brandenburg Test, or Incitement Test, stipulates that advocating violent behavior as an abstract concept or philosophy remains protected by the First Amendment. Yet the decision noted that speech that clearly “intends” to incite “imminent” violence or illicit actions, and is “likely to incite or produce such actions,” loses that protection. As a result, the Brandenburg Test demands that the time span between advocating for violence or illegal actions and the expectation of the action occurring must be short, and there should be a strong chance the action will take place.

Clarence Brandenburg, a Ku Klux Klan leader, invited a television reporter and cameraman to film a rally where hooded people carried guns, burned a cross and speeches were made. He was filmed making offensive racial remarks and qualified threats against the President, Congress and the Supreme Court that included statements like “it's possible that there might have to be some revengeance [sic] taken.” Brandenburg was convicted of breaking an Ohio sedition law, but the Supreme Court's per curiam opinion surmised that a state statute that fails to meet the incitement standards “intrudes upon the freedom guaranteed by the First and Fourteenth Amendments.” The Brandenburg Test can also likely serve as a buffer for journalists speculating about certain violent or illegal actions.

—Glenn Lewis Volume Editor

U.S. Supreme court BRAnDEnBURG v. OHIO, 395 U.S. 444 (1969) 395 U.S. 444

BRANDENBURG v. OHIO. APPEAL FROM THE SUPREME COURT of OHIO. No. 492. Argued February 27, 1969. Decided June 9, 1969. PER CURIAM.

The appellant, a leader of a Ku Klux Klan group, was convicted under the Ohio Criminal Syndicalism statute for “advocat[ing] … the duty, necessity, or propriety [395 U.S. 444, 445] of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform” and for “voluntarily assembl[ing] with any society, group, or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism.” Ohio Rev. Code Ann. §2923.13. He was fined $1,000 and sentenced to one to 10 years' imprisonment. The appellant [Page 1485]challenged the constitutionality of the criminal syndicalism statute under the First and Fourteenth Amendments to the United States Constitution, but the intermediate appellate court of Ohio affirmed his conviction without opinion. The Supreme Court of Ohio dismissed his appeal, sua sponte, “for the reason that no substantial constitutional question exists herein.” It did not file an opinion or explain its conclusions. Appeal was taken to this Court, and we noted probable jurisdiction. 393 U.S. 948 (1968). We reverse.

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