Brandenburg v. Ohio

The Court held that advocacy of unlawful action is protected unless it is intended and likely to produce imminent lawless action.

Overview

An Ohio Klan leader was convicted under a criminal syndicalism statute after a rally with racial slurs filmed by television crews. The Court unanimously reversed, holding that government may not forbid advocacy of force or law violation except where such advocacy is directed to inciting imminent lawless action and is likely to produce it. Brandenburg completed the journey from Schenck, imposing maximal protection even for hateful revolutionary speech. It remains the strongest incitement standard adopted by any constitutional court and the governing test for when speech crosses into unprotected territory.