Brandenburg v. Ohio (1969)

Facts:
A Ku Klux Klan leader in Ohio, Charles Brandenburg spoke at a rally where his remarks included a threat of "revengeance" against the President, the Congress, and the Supreme Court. Brandenburg had invited a TV crew to film the rally, and his remarks were on tape. He was convicted of violating Ohio's Criminal Syndicalism Act.

Substantive Issue:
Does the Ohio law make the proper distinction between advocacy of abstract ideas and advocacy of violent action?

USSC Ruling: Conviction Reversed. 9-0

Reasoning: Opinion per curiam

• State laws that fail to distinguish between advocacy of ideas and advocacy of violent action are invalid.
• The Court's ruling in Whitney is overturned.Courts must use the "incitement" test

The government must prove that the danger is real (not imaginary), and even threatening speech is protected unless the state can prove that the "advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." See Tedford & Herbeck, p. 65.