395 U.S. 444 (1969)
In the period leading to his prosecution, Clarence Brandenburg, identified at trial as a leader of a Ku Klux Klan group, telephoned an announcer-reporter on the staff of a Cincinnati television station and invited him to come to a Klan rally to be held at a farm in Hamilton County, Ohio.1 With the cooperation of the organizers, the reporter and a cameraman attended the meeting and filmed the events. Portions of the films were later broadcast on the local station and on a national network.2
The films showed twelve hooded figures, some carrying firearms, gathered around a large wooden cross which they burned.3 In one scene Brandenburg, wearing Klan regalia, delivered a speech in which he stated that the Klan had hundreds of members throughout the State of Ohio and warned that if the President, Congress, and Supreme Court continued to suppress the white Caucasian race it was possible that some revengeance would have to be taken.4 He announced plans to march on Congress July the Fourth, four hundred thousand strong before dividing into groups to march on St. Augustine, Florida, and into Mississippi.5 A second film showed Brandenburg repeating a similar speech, adding that he believed the Negro should be returned to Africa and the Jew returned to Israel.6
Based on these films and testimony identifying Brandenburg as the speaker and the person who contacted the reporter, he was convicted under the Ohio Criminal Syndicalism statute.7 He was fined one thousand dollars and sentenced to one to ten years' imprisonment.8
The intermediate appellate court of Ohio affirmed the conviction without opinion.9 The Supreme Court of Ohio dismissed Brandenburg's appeal sua sponte for the reason that no substantial constitutional question exists herein.10 The United States Supreme Court noted probable jurisdiction and heard the appeal.11
Whether the Ohio Criminal Syndicalism statute violates the First and Fourteenth Amendments as applied to the appellant's speech and assembly?12
The constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action. Such advocacy must also be likely to incite or produce such action.13
Yes. The Ohio Criminal Syndicalism statute punishes persons who advocate or teach the duty, necessity, or propriety of violence as a means of accomplishing industrial or political reform. It also punishes those who voluntarily assemble with a group formed to teach or advocate the doctrines of criminal syndicalism.14 In the established facts the appellant's filmed speeches stated that the Klan had hundreds of members.15 They warned that revengeance might have to be taken if the government continued to suppress the white race.16 They announced plans to march on Congress four hundred thousand strong before dividing into groups to march on St. Augustine and Mississippi.17 These statements occurred at a private farm attended only by participants and newsmen.18
The statute and the jury instructions drew no distinction between such advocacy and incitement to imminent lawless action.19 The statute as applied to these facts therefore impermissibly intrudes upon the freedoms guaranteed by the First and Fourteenth Amendments.20
The Ohio Criminal Syndicalism statute violates the First and Fourteenth Amendments as applied to the appellant's speech and assembly.21
Related opinions on this issue
Justice Black agreed with the views expressed by Mr. Justice Douglas in his concurring opinion in this case that the clear and present danger doctrine should have no place in the interpretation of the First Amendment.22 He joined the Court's opinion, which, as he understood it, simply cites Dennis v. United States but does not indicate any agreement on the Court's part with the clear and present danger doctrine on which Dennis purported to rely.23 Black thus endorsed the result while reiterating his rejection of the doctrine that had been used in earlier cases like Dennis.
Justice Douglas joined the opinion but entered a caveat rejecting the clear and present danger test as irreconcilable with the First Amendment in days of peace.24 He maintained that the line between protected and regulable expression runs between ideas and overt acts.25 Speech is immune from prosecution except when brigaded with action such as falsely shouting fire in a crowded theater.26
He noted that the test had been distorted in Dennis to permit political trials that eroded substantial parts of the First Amendment.27
Whether Whitney v. California should be overruled?28
Whitney v. California has been thoroughly discredited by later decisions. That case sustained a similar criminal syndicalism statute on the ground that advocating violent means to effect political and economic change involves such danger to the security of the State that the State may outlaw it.29
Yes. Later decisions have established that the constitutional guarantees of free speech and free press require the distinction between mere advocacy and incitement to imminent lawless action.30 The established facts show that the Ohio statute, like the California statute upheld in Whitney, punishes advocacy without that distinction.31 The Court therefore overruled Whitney as inconsistent with the First and Fourteenth Amendments.32
Whitney v. California should be overruled.33