The ‘Brandenburg test’ for incitement to violence

In 1969, the U.S. Supreme Court made history by ruling that, to merit conviction, the violence advocated must be intended, likely and imminent. By Jeff Howard.

The case

Clarence Brandenburg, a 48 year-old television repair shop owner and leader of the Ku Klux Klan’s Ohio branch, held a rally in the summer of 1964 to articulate and celebrate his white supremacist ideology. Brandenburg proclaimed in front of local TV cameras: “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 [sic] taken.” Indicating an impending Independence Day march on Washington, DC, the speech included such statements as, “the nigger should be returned to Africa, the Jew returned to Israel.” While Brandenburg was not evidently armed, other Klansmen at the rally were.

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Brandenburg was found guilty of violating Ohio state law, which prohibited “advocat[ing] . . . the duty, necessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform,” as well as “voluntarily assembl[ing] with any society, group or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism.” His penalties included a $1,000 fine and a 1-10 year prison sentence.

In a landmark judgment, the U.S. Supreme Court overturned the conviction, contending that the Ohio law affronted Brandenburg’s freedom of speech, protected by the First Amendment of the U.S. Constitution. Instead, the Court held: “Freedoms of speech and press do not permit a State to forbid 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.” Because the rally was not obviously intended to incite specific acts of violence, and because it was not likely to do so, government restriction of Brandenburg’s speech was unconstitutional.

Author opinion

The Supreme Court made a legally and morally compelling decision in insisting that hateful speech be permitted so long as it is not likely to cause imminent harm. In doing so, it reiterated a principle long ago argued by J.S. Mill, who wrote: “An opinion that corn dealers are starvers of the poor, or that private property is robbery, ought to be unmolested when simply circulated through the press, but may justly incur punishment when delivered orally to an excited mob assembled before the house of a corn dealer, or when handed about among the same mob in the form of a placard.” So long as the rights of individual to be free from physical harm are not imminently endangered, the law ought to protect as wide a sphere of free expression as possible.

However, while it is true that the law ought to permit Klansmen to articulate their ideals, it does not follow that we ought to listen politely to their insidious messages without vigorous response. Condemnatory counter-speech is essential. We must never forget that the eponymous protagonist of the Brandenburg case was a white supremacist. How rich, indeed, it is for someone like him – who would have keenly destroyed the free speech protections (and much else) afforded to racial minorities were he appointed ruler – to complain that his right to advocate genocide was improperly abridged. As has been recently argued, our law on free speech must be conjoined with a robust ethic of free speech according to which we ought to criticize and condemn the enemies of civilisation who live among us.

- Jeff Howard

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Free Speech Debate is a research project of the Dahrendorf Programme for the Study of Freedom at St Antony's College in the University of Oxford.

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