Ohio had a law (the Criminal
Syndicalism Statute) that made it
illegal to advocate "crime, sabotage, violence, or unlawful methods
of terrorism as a means of accomplishing industrial or political
Brandenburg, who was a member
of the Ku Klux Klan, gave a speech at a rally. He was convicted of violating
the law and sentenced to prison. He appealed.
Brandenburg argued that the
law was unconstitutional since it infringed on his 1st
Amendment right to freedom of
The US Supreme Court
overturned the conviction and found the law to be unconstitutional.
Instead of applying the clear
and present danger test (see Schenck
v. United States (249 U.S. 47 (1919))), the reasonableness
approach (see Gitlow v. New York
(268 U.S. 652 (1925))), or the risk formula approach (Dennis v. United States (341
U.S. 494 (1951)) to determine if the speech should be protected, the
Court came up with a new test.
The new test the Court
formulated with this decision (the Brandenburg Test (aka the imminent lawless action
test)) asks a two pronged question:
Is the speech, "directed
at inciting or producing imminent lawless action?" and,
Is the speech is
"likely to incite or produce such action?"
In this case, the Court
found that the Ohio law did not distinguish between speech that is likely
to incite lawless action, and speech that was not likely to incite
lawless action. Therefore it is overbroad and unconstitutional.
This new Brandenburg Test is the most speech-protective test that the
Court has used, and is the current test for 1st Amendment
It isn't called strict
scrutiny, but it is comparable to strict