Brandenburg v. Ohio, 395 U.S. 444 ( 1969
The constitutional protection of a right to freedom of speech and other forms of expression really begins in 1919. Prior to that time, from the adoption of the Constitution until the adoption of the Fourteenth Amendment, the First Amendment was understood to apply only to the federal government, a principle stated by the Supreme Court in Barron v. Baltimore, 32 U.S. 243 ( 1833 ). As a result, states were constitutionally free to restrict or punish expression in whatever way they saw fit. It was only after the adoption of the Fourteenth Amendment that the Supreme Court concluded that at least some of the rights protected by the first eight amendments in the Bill of Rights applied to limit the actions of state governments.
Initially, courts applied a standard called the “bad tendency test” derived from an English obscenity case called Regina v. Hicklin ( 1868 ). The rule established in Hicklin was that the government had the authority to restrict or punish expression that could have a bad effect on people who were exposed to it. This standard was applied by the US Supreme Court in early free speech cases to mean that the government could punish political expression that might create a tendency toward disloyalty. In Gitlow v. New York, 268 U.S. 652 ( 1925 ), Justice Edward T. Sanford, writing for the majority, explained that the government was within its rights to punish a man who published a pamphlet that advocated communist revolution even if there was no immediate danger that such a revolution would occur.
Such utterances, by their very nature, involve danger to the public peace and to the security of the State. They threaten breaches of the peace, and ultimate revolution. And the immediate danger is none the less real and substantial, because the effect of a given utterance cannot be accurately foreseen. The State cannot reasonably be required to measure the danger from every such utterance in the nice balance of a jeweler's scale. A single revolutionary spark may kindle a fire that, smouldering for a time, may burst into a sweeping and destructive conflagration (268 U.S. at 669).
In dissenting opinions in Gitlow and in cases such as Abrams v. United States, 250 U.S. 616 ( 1919 ), and Whitney v. California, 274 U.S. 357 ( 1927 ), Justices Louis Brandeis and Oliver Wendell Holmes proposed a different test. They argued that the government should be able to proscribe or punish expression only if it posed a “clear and present danger,” a standard that they thought would greatly narrow the power of the government to punish political expression. Through the 1920s other justices resisted the clear-and-present-danger test, but starting in the 1930s it became prevalent in First Amendment jurisprudence. In the process, however, the test was watered down to the point where the government would be found to have identified a clear and present danger in the mere fact of promoting the idea of communism or membership in the Communist Party. As late as 1951, in Dennis v. United States, 341 U.S. 494, the Supreme Court upheld the conviction of eleven members of the Communist Party for the crime of conspiring to advocate revolution, despite the total absence of any evidence that such a revolution was being attempted.
This “imminent lawless action” test severely restricts the government's ability to punish any kind of political advocacy. The kinds of advocacy that the government may punish, under this standard, are analogous to yelling “break the windows!” during a violent demonstration outside a government office—that is, incitement to commit an act of violence in a context in which it is reasonable to expect violence to occur as a result. The persons at the Ku Klux Klan demonstration had called for “vengeance” and talked about a march on Washington, but these statements were not found to rise to the level of incitement.
The protections of the Brandenburg test do not apply equally to all forms of expression. Even while the clearand-present-danger test was still being applied, the Supreme Court was developing another important principle, a categorical test that described certain specific types of speech as unworthy of constitutional protection. The clearest statement of this principle appeared in Chaplinsky v. State of New Hampshire, 315 U.S. 568 ( 1942 ): “There are certain well defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting’ words” ( at 571–72 ). Other categories of speech that are not protected by the First Amendment include fraud, threats, blackmail, and speech that reveals government secrets.
The importance of Brandenburg, then, is that it establishes the modern test for when the government may punish or attempt to prevent otherwise protected expression, meaning expression that is not found to fit into one of the unprotected or less protected categories mentioned in Chaplinsky and developed in later cases. Brandenburg stands as the most important case establishing the principle that the government cannot punish or prevent political advocacy, no matter what is being advocated, unless the speaker is inciting imminent lawless action that is likely to occur as a result. This principle stands as the strongest legal protection for political expression in American constitutional law to this day.
SEE ALSO American Constitutional Development from 1937 to 1980 ; Freedom of Speech: Advocacy in Times of Crisis ; Whitney v. California .
Lewis, Anthony. Freedom for the Thought We Hate: A Biography of the First Amendment. New York: Basic Books, 2010.
Rabban, David M. Free Speech in its Forgotten Years, 1870-1920. Cambridge, UK, and New York: Cambridge University Press, 1999.
Schweber, Howard. Speech, Conduct and the First Amendment. New York: Peter Lang, 2003.
Stone, Geoffrey R. Perilous Times: Free Speech in Wartime from the Sedition Act of 1798 to the War on Terrorism. New York: W.W. Norton, 2004.
Waldron, Jeremy. The Harm in Hate Speech. Cambridge, MA: Harvard University Press, 2014.
University of Wisconsin Law School