“This is, however, a classic case where speech is brigaded with action. They are indeed inseparable and a prosecution can be launched for the overt acts actually caused. Apart from rare instances of that kind, speech is, I think, immune from prosecution.”

— Justice William O. Douglas

“The mere abstract teaching … of the moral propriety or even moral necessity for a resort to force and violence, is not the same as preparing a group for violent action and steeling it to such action.”

— Per curium opinion, Brandenburg v. Ohio, 1969

The scene was made for television, and television is where it ended up. A local KKK leader organized a rally to be held on a farm. After securing attendees, he telephoned the local television station and invited a reporter and cameraman to come and film the rally and the words to be spoken at it. The reporter obliged, and the station agreed to air part of the rally on their evening newscast.

On the video from the rally, a dozen or more hooded figures could be seen. Several were carrying firearms. One was carrying a Bible. And while most had white hoods, one was wearing a red hood. They were gathered around a large wooden cross, which they proceeded to burn. Many of them spoke during this period, and bits of pieces of what they said could be heard — most of it derogatory toward African Americans and Jews.

Following the burning of the cross, the red hooded figure gave a speech. During the speech, he said, “This is an organizers’ meeting. We have had quite a few members here today which are — we have hundreds, hundreds of members throughout the State of Ohio. I can quote from a newspaper clipping from the Columbus, Ohio Dispatch, five weeks ago Sunday morning. The Klan has more members in the State of Ohio than does any other organization. We’re not a revengent organization, but if our President, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, it’s possible that there might have to be some revengeance taken. We are marching on Congress July the Fourth, four hundred thousand strong. From there we are dividing into two groups, one group to march on St. Augustine, Florida, the other group to march into Mississippi. Thank you.”

The speech wasn’t delivered in 2017 in Charlottesville, Virginia. Nor was it delivered in the 1930s in the deep south. It was delivered on a farm in Hamilton County, Ohio in the summer of 1964. The television station in question was a local Cincinnati affiliate.

Hamilton County authorities were not amused. The speaker, Clarence Brandenburg, was arrested under Ohio’s “criminal syndicalism” statute. He was convicted, fined $1,000 and sentenced to an indefinite term of one to ten years in an Ohio penitentiary. Brandenburg appealed, claiming that the conviction violated his rights to free speech. The 1st District Court of Appeals in Cincinnati rejected his claim, and the Ohio Supreme Court rejected his appeal without even issuing a decision.

Brandenburg’s lack of appellate success was no surprise at that time. Prior to his case, the federal courts had established a policy that a person could be punished for inciting violence if their speech had a tendency to harm public welfare. This “bad tendency” test had been the law in the United States for more than half a century at that point, and though Justice Holmes had already invoked the “clear and present danger” phrase, the bad tendency test remained good law.

Brandenburg’s attorneys asked the U.S. Supreme Court to hear his case, and on June 8, 1969, the Court issued a “per curium” opinion (in which the Court speaks as a whole), striking down Brandenburg’s conviction and the Ohio statute on which it was based. The High Court announced an entirely new test to be applied in free speech incitement cases. Known as the “imminent lawless action test,” it provides that, “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 and is likely to incite or produce such action.”

The Court reasoned that because Brandenburg’s speech was given on a private farm, to a small group of supporters, and did not incite any imminent lawless action, he could not be punished for what he had said.

More than fifty years have passed since television cameras broadcast Brandenburg’s racist tirade, and nearly five decades have passed since the Supreme Court struck down his conviction, but the Brandenburg test remains good law in the United States.

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David Hejmanowski

Contributing Columnist

David Hejmanowski is Judge of the Probate/Juvenile Division of the Delaware County Delaware County Court of Common Pleas.