Oklahoma State University – Oklahoma City
Civil Rights and Liberties - POLS 1320
Winter 2022
Lecture Notes Fourteen
Contents: Retreat from the Clear and Present Danger Test.
Lecture Notes Fourteen
The Court eventually modified the clear and present danger test by adopting a stricter scrutiny of
governmental restrictions on freedom of speech. As American society in the 1960s became gradually
more tolerant of political dissent, the Warren Court became more willing to extend First Amendment
protection to political speech regardless of its substance. The Court eventually retreated from the clear
and present danger test altogether, and came to rely on the preferred freedoms approach to freedom of
expression disputes. The pivotal case in this shift in the justices’ thinking was Brandenburg v. Ohio, 395
U.S. 444 (1969). Charles Brandenburg, the leader of a local Ku Klux Klan group, was convicted of violating
the Ohio Criminal Syndicalism statute, fined $1000, and given a ten-year prison term. The law
proscribed “advocating the duty, necessity, or propriety of crime, sabotage, violence, or unlawful
methods of terrorism as a means of accomplishing industrial or political reform” and for “voluntarily
assembling with any society, group, or assemblage of person formed to teach or advocate the doctrines
of criminal syndicalism.” Brandenburg and his group had assembled in a rural field north of Cincinnati.
At the rally, a cross was burned and speeches were made. A Cincinnati television reporter covered the
rally at the request of Brandenburg.
The State’s case rested largely on two films taken by the television reporter showing twelve hooded
men standing around a burning cross. Some of the men carried guns, while other carried guns and
Bibles. According to the evidence pointed out in the opinion, one film showed Brandenburg speaking
before those assembled. During his diatribe he announced that if the president, Congress, and the
Supreme Court continued “to suppress the white, Caucasian race, it’s possible that here might have to
be some revenge taken.” During a second speech, he added, “Personally, I believe the niggers should be
returned to Africa, the Jew returned to Israel.” The state also presented as evidence a shotgun, a pistol,
a rifle, a Bible, and Brandenburg’s red Klan hood.
The U.S. Supreme Court reversed Brandenburg’s conviction and struck down the Ohio law. In a per
curiam (“unsigned”) opinion issued during the last year of Chief Justice Earl Warren’s tenure, the Court
established that a state may not punish the mere advocacy of force unless it can show that such
advocacy is intended to incite imminent illegal action and is likely to produce such action. The Court also
cited Noto, reiterating the that “the mere abstract teaching of the moral propriety or even moral
necessity for a resort to force or violence, is not the same as preparing a group for violence and steeling
it to such action.”
The Court found the Ohio statute to be overly broad and thus contrary to the First and Fourteenth
Amendments because it failed to distinguish between advocacy and incitement to lawless action. It
punished the mere advocacy or teaching of doctrine and prohibited assembling with others for the
purpose of advocating a doctrine. It even punished those who would publish or circulate a book or
paper containing such advocacy.
Brandenburg’s threats of violence were directed at two groups of person, African Americans and Jews,
and were delivered to a like-minded assemblage consisting of his fellow Klansmen. The rally took place
