Brandenburg Test Law & Legal Definition


In Brandenburg, the petitioner was a leader of the Ku Klux Klan. He was convicted by the Ohio courts after a television news report was aired broadcasting speeches made by petitioner. He was charged with violating Ohio's criminal syndicalism statute, Ohio Rev. Code Ann. § 2923.13, which made it unlawful, to advocate crime or methods of terrorism or to voluntarily assemble with any group to teach or advocate doctrines of syndicalism. His conviction was upheld on appeal by the Supreme Court of Ohio. However the U.S Supreme Court granted review and concluded that, because Ohio's criminal syndicalism statute did not draw a distinction between teaching the need for force or violence and preparing a group for violent action, the statute unconstitutionally intruded on the rights guaranteed by the U.S. Const. amends. I and XIV. As a result, the Court reversed petitioner's conviction because the statute upon which his conviction was based was unconstitutional.

Brandenburg is the linchpin of the modern doctrine of free speech and has greatly expanded the scope of political speech. This test allows virtually all political speech, unless it is demonstrably linked to immediate lawless behavior.