Issue.  Does Ohio's Criminal Syndicalism statute that makes criminal, "advocat[ing]. . .the duty, necessity, or propriety of crime, sabotage, violence or lawful methods of terrorism as means of accomplishing industrial or political reform" an unconstitutional infringement on the freedom of speech.

Background.  Brandenburg was convicted under Ohio's criminal syndicalism statute after authorities viewed a tape of a Ku Klux Klan rally where the participants burned a cross, made derogatory statements against blacks and Jews (and called for them to return to their homelands) and spoke of a march on Washington D.C.   The speakers of the rally also spoke of possible revengance if the Federal government continued to suppress the white race.  Authorities believed that this talk of revengence was enough to prove that the speakers were advocating violence and the like to accomplish political reform.

Court's Analysis.  The Court noted that it had held up a similar law from California (Whitney v. U.S.) almost fifty years ago on the grounds that the law was done to prevent "clear and present danger".  However, since that ruling, the Court had chipped away at the "clear and present danger" standard and noted that the mere advocacy of violence to achieve a political end is not the same as preparing and steering a group to violence.  Any statute that does not make the distinction between advocacy of violence and actually readying for violence violates the First Amendment.

Therefore, only a statute that punishes speech that "is directed to inciting or producing imminent lawless action and is likely to incite or to produce such action" can survive constitutional scrutiny.

My Analysis.  It was smart for the Court to narrow the scope of criminal punishment for the advocacy of violence to achieve political reform.  At the same time, it would be difficult to demonstrate if advocacy of violence is going to lead to "imminent lawless action".  I mean how close to the action need we get before it becomes permissible to punish.  Yeah, if you are leading a group of people with pitchforks and announce "Charge!", that seems permissible to punish.  But, there are trickier situations.  What do you do at an anti-American rally where everyone is carrying weapons and all announce that they are going to attack the Capitol to save America but the rally is taking place somewhere in Oregon and there is little likelihood that they are going to march on the Capitol.

Further, do they not have the right to march on the Capitol and once they do, send out the military and arrest them all for treason? What point do we say that the speech has crossed the line and punishment is constitutionally permissible?