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Ku Klux Klansman Clarence Brandenburg invited a reporter to attend a KKK meeting. During the meeting, members of the group brandished weapons and made disparaging statements about black and Jewish people. Brandenburg stated that if the government continued to suppress the white race, the KKK might take “revengeance.”
After the report aired, Brandenburg was charged with violating an Ohio state law that made it a crime to advocate “crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform.” Brandenburg was convicted, and he appealed on the ground that the state law violated the First Amendment.
The United States Supreme Court considered the question in Brandenburg v. Ohio, 395 U.S. 444 (1969).
The Court reversed Brandenburg’s conviction, holding that the state law violated the First Amendment’s protection of free speech. In a per curiam opinion, the Court explained that states could not criminalize speech, unless that speech was meant to incite a specific crime and imminently likely to do so. This case departed from the clear-and-present danger standard previously articulated in Schenck v. United States, 249 U.S. 47 (1919).
Brandenburg remains an important limit on the government’s ability to criminalize speech, even if that speech advocates violence.