Brandenburg Vs. Ohio (Case Summary)
In Brandenburg Vs Ohio (1969) the Supreme Court of USA propounded the principle of “imminent lawless action” in testing the reasonableness of restriction on freedom of speech and press guaranteed by the Constitution of USA under the 1st Amendment. The principle of “imminent lawless action” supplanted the principle of “clear and present danger” propounded in “Schenck Vs. United States”.
In Brandenburg Vs Ohio (1969) the Supreme Court of USA propounded the principle of “imminent lawless action” in testing the reasonableness of restriction on freedom of speech and press guaranteed by the Constitution of USA under the 1st Amendment. The principle of “imminent lawless action” supplanted the principle of “clear and present danger” propounded in “Schenck Vs. United States”.
FACTS OF THE CASE
Mr. Brandenburg was a leader of Ku Klux Klan Group. He has invited a reporter to cover an event. The demonstration was filmed in parts, with numerous men dressed in robes and hoods, some holding firearms, first burning a cross and then making statements. Some statements were also made against negros and jews. He was convicted under Ohio Criminal Syndicalism Statute for advocating inter alia sabotage, violence or unlawful methods of terrorism as means of accomplishing industrial and political reform. Mr. Brandenburg challenged the constitutionality of the criminal syndicalism statute under the First and Fourteenth Amendment. The Supreme Court of the Ohia affirmed the conviction. The case finally travelled to the Supreme Court of USA which reversed the conviction.
FINDINGS OF THE COURT
The Supreme Court held that Ohio Criminal Syndicalism Act can not be sustained. The Court observed that the jury had failed to distinguish from incitement to imminent lawless action. The Supreme Court further held that the statute punishes mere advocacy and falls within condemnation of First and Fourteenth Amendment.
The Supreme Court developed two pronged test. Firstly whether speech is directed at imminent lawless action and Secondly whether speech likely to incite or produce such action.
Thus the Supreme Court abdicated “clear and present danger” test which has been propounded in Schenck Vs. United States and has been followed in many cases.
Justice Douglus concurred with the opinion of the Court overtly criticized the “clear and present danger” test. Justice Douglus noted that “clear and present danger test” has caused crushing of fundamental rights of the free men to strive for better conditions. Justice Douglous also noted that “clear and present danger test” is not compatible with 1st Amendment in times of peace. Justice Douglous observed that action sometimes is also a method of expression protected under 1st Amendment. If a person tears up the copy of the Constitution in protest, can he be indicted ? If a person tears up a copy of bible while adopted atheism, can he be indicted ? Justice Douglus observed that there is no place in theregime of the First Amendment for any “clear and present danger” test. Justice Douglus also observed that the line between what is permissible and not subject to control and what may be made impermissible and subject to regulation is the line between ideas and overt acts.
RELEVANCE OF THE CASE
“Imminent lawlessness test” has been replaced “clear and present danger test” in testing whether speech of any person infringes right to freedom of speech guaranteed by the 1st Amendment. This test is more stricter in comparison to “clear and present danger test”. This test has been incorporated by jurisprudence of other countries also.
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Mukesh Kumar Suman is an advocate and legal author based at Delhi. He regularly appears before various Judicial Forums including NCLT, NCLAT, High Courts and the Supreme Court. He can be approached at mukesh_suman@outlook.com or +91 9717864570.