Clarence Brandenburg, a leader in the Ku Klux Klan, made a speech at a Klan rally and was later convicted under an Ohio criminal syndicalism law. The law made illegal advocating “crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform,” as well as assembling “with any society, group, or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism.”
The Court’s opinion in Brandenburg v. Ohio (1968) held that the Ohio law violated Brandenburg’s right to free speech. The Court used a two-pronged test to evaluate speech acts: (1) speech can be prohibited if it is “directed at inciting or producing imminent lawless action” and (2) it is “likely to incite or produce such action.” The criminal syndicalism act made illegal the advocacy and teaching of doctrines while ignoring whether or not that advocacy and teaching would actually incite imminent lawless action. The failure to make this distinction rendered the law overly broad and in violation of the Constitution. Source: Oyez, Brandenburg v. Ohio (1968)
A. Identify a constitutional provision that is common to both Brandenburg v. Ohio (1968) and Schenck v. United States (1919).
B. Based on the constitutional clause identified in part A, explain why the facts of Brandenburg v. Ohio led to a different holding than the holding in Schenck v. United States.
C. Explain how an interest group could use the holding in Brandenburg v. Ohio to further its agenda.
