Supreme Court Case Brandenburg vs Ohio

Table of Content

The Supreme Court employs different criteria for the examination of cases. It is not possible for the Supreme Court to select all cases, hence they must exercise judicious discretion in their selection process. The Court must ensure adherence to federal law by maintaining uniformity and consistency in the cases they choose.

According to Rossum (28), the Court considers Supreme Court Rule 17, known as ‘Considerations Governing Review on Certiorari,’ as crucial in granting certiorari. This rule comprises four fundamental guidelines. The first one requires the Court to determine if there are any significant questions regarding Federal Law in the case that have not been addressed or ruled upon by the Court before.

This essay could be plagiarized. Get your custom essay
“Dirty Pretty Things” Acts of Desperation: The State of Being Desperate
128 writers

ready to help you now

Get original paper

Without paying upfront

In conclusion, the Court must evaluate whether there are conflicting interpretations of the Federal Law among lower courts. They also need to determine if any rulings by lower courts contradict previous Supreme Court decisions. Furthermore, they must examine “lower court departures from the accepted and usual course of judicial binding” (Rossum 28). Additionally, on occasion, the Supreme Court will consider the significance of the case. When discrepancies arise between lower courts, the Supreme Court will review the case and assess whether there is any matter in this specific case that could be a significant concern for various aspects such as nation, region, gender, race, etc.

When the Supreme Court is presented with cases that have significant long-term consequences, such as those challenging the legality of the Vietnam War, it may choose to decline them. The court’s objective in these situations is to maintain impartiality and avoid getting entangled in political conflicts, which leads to dismissal of any related cases. Additionally, the Court takes into account the need to prevent unnecessary influence on public opinion.

The Court achieves this goal by minimizing the potential contentious issues that could impact public opinion. They consider public perception when choosing cases in order to ensure that their significant judgments are disseminated (Rossom 29). Once a case reaches the Supreme Court, attorneys representing both sides must present legal briefs, which are partisan written documents designed to convince the Court to support their respective positions.

Once the Supreme Court Justices have finished reading the legal briefs, they move on to the oral arguments. In this stage, lawyers are given around thirty minutes to persuade the Court and elaborate on the points raised in the briefs. Moreover, the Justices can ask questions about the case to verify its accuracy. After these proceedings, the Justices gather privately to discuss and consider the information presented.

The Justices are required to base their vote on how the case aligns or contradicts the constitution and are not allowed to rely on personal opinion. Following their discussion, they proceed with casting oral votes, beginning with the newest member and ending with the eldest. However, even after the oral votes are conducted, the case remains subject to further debate.

The Justices engage in further discussion regarding the case, where they express comparable or differing opinions. These opinions aim to assist the Court in affirming their initial vote or potentially reconsidering it. The objective is to reach a conclusive verdict. After each Justice has cast their final vote, they engage in further dialogue with one another, providing explanations for their voting decisions. If any discrepancies within the Court persist, efforts are made to resolve them. Ultimately, a final verdict is determined through a majority ruling and subsequently announced to the court (Rossom 30-32).

The majority opinion refers to the viewpoint held by the majority in a case, typically determined by a vote. In a scenario where the vote is 7-1, the majority opinion would be aligned with the seven justices. These justices deliberate and share their perspectives before casting their final vote. Conversely, the dissenting opinion arises from the justice who disagrees with the majority. They also engage in discussions to persuade the majority to reconsider their stance.

In the case of a 5-3 vote, the majority vote consists of five votes while the dissenting vote is represented by three votes (Rossom 33). The event known as Brandenburg v. Ohio took place in 1969, involving a rally organized by a Ku Klux Klan leader named Brandenburg in Hamilton County, Ohio.

Brandenburg contacted a reporter in Cincinnati prior to the rally to announce the event he was organizing. The rally was attended by approximately twelve Klan members, who proceeded to ignite a cross. Brandenburg himself wore a complete Klan outfit and delivered a speech where he stated, “We are not a vengeful organization, but if our President, Congress, and Supreme Court continue to suppress the white Caucasian race, there may be a need for some retribution to be taken” (Brandenburg Great). At the rally, the small group of attendees shouted racist remarks and expressed a desire to send all Jews back to Israel (Brandenburg Great).

The two reporters captured the entire incident on film and it was broadcasted on local news. Consequently, Brandenburg was charged and convicted under Ohio’s Criminal Syndicalism Act, a law enacted in 1919 that forbade organizations from gathering with the aim of inciting violence or terrorism to achieve industrial or political reform. It is evident that Brandenburg’s actions directly violated this legislation.

Brandenburg recognizes that this law violates his First and Fourteenth Amendment rights to free speech. He appeals the decision to the appeals court, who agree without providing an opinion. Brandenburg then takes the case to the Ohio Supreme Court, but they disagree with him. The Ohio Supreme Court rejects his appeal, as they believe there are no significant constitutional issues at hand.

The Court did not provide any explanation for their claim when they filed it. The appeal was then brought to the attention of the Supreme Court, and they accepted it due to a probable jurisdiction (Brandenburg Great). The majority opinion of the Supreme Court was a Per Curiam, indicating that it was issued by the Court as a collective entity rather than being issued and signed by an individual justice. The Per Curiam ruled against the Ohio Criminal Syndicalism statute, reasoning that it violates both the first and fourteenth amendments.

The Per Curiam referred to a previous case, Whitney v. California, where the state’s Criminal Syndicalism statute was also deemed unconstitutional due to its violation of the first and fourteenth amendments. In an attempt to establish a new standard, the Per Curiam introduced the imminent lawless action test.

The ruling on the imminent lawless action test was greatly influenced by California, Dennis v. United States, and Cf. Fiske v. Kansas.

This test essentially declares that the state cannot prevent or forbid the endorsement of force or law violation unless such endorsement leads to immediate, lawless action and there is a reasonable possibility that such action will indeed occur. However, there are three key factors in this test: intent, imminence, and likelihood. Merely uttering negative remarks about something or someone would no longer be grounds for arrest or charge. This undermines our freedom of speech and effectively criminalizes criticism of individuals or the government.

The reason why they overturned this case is also why presidential hopefuls are allowed to criticize each other to win the nomination. The case was based on a man shouting offensive comments towards black people and Jews (Brandenburg Find). The only justice who concurred in this case was Justice Hugo Black, who concurred with Justice William O. Douglas.

In summary, they reached a consensus that the First Amendment’s “no law” (Brandenburg Find) should not be interpreted too literally. Furthermore, all forms of speech cannot be prosecuted. Douglas referred to the United States v. O’Brien case to support this viewpoint.

O’Brien was convicted of burning his draft card, but Douglas disagreed with the verdict, asserting that O’Brien’s actions were legitimate and intended as a form of expression. He argued that such actions should be safeguarded by the First Amendment, similar to this case. Douglas believed that Brandenburg was also attempting to communicate a message to the public and should therefore receive equal protection. Black concurred with Douglas’s assertion (Brandenburg Find). The phrase “Amicus Curiae” translates from Latin as friend of the court.

The court determines the acceptance or denial of an Amicus Curiae request, which is a voluntary provision of information about law or a court case. Typically, someone who believes their interests may be affected by the court’s decision submits it to aid the court in reaching a conclusion.

The Curiae can take two forms: a legal brief, which is unsolicited testimony in a case, or a learned treatise that offers relevant information. Controversial cases often receive numerous Amicus Curiae briefs (Rossum 31). Whitney v. California is closely associated with Brandenburg v.

Ohio. Charlotte Anita Whitney, a woman from California, was convicted in 1919 of violating California’s Criminal Syndicalism Act. She was attempting to establish a Communist Labor Party that aimed to educate people on violent methods of overthrowing the government, according to the state of California’s belief.

Whitney voiced her discontent with the situation, perceiving it as a mere effort by a group to communicate a message. Despite being convicted, she took her case to the Supreme Court and contended that her right to freedom of speech under the Fourteenth Amendment had been infringed upon. In the end, California received unanimous support from the 9-0 Supreme Court decision (Tedford).

There were no dissenting opinions in this unanimous vote, but there was a seven person majority opinion and a two person concurrence. Justice Sanford authored the majority opinion, stating that Whitney not only applied the clear and present danger test but went beyond it. According to Sanford, individuals who incite crime or danger, disturb the public, or threaten government overthrow can be punished by the state (Tedford). Justice Louis Brandeis wrote a concurring opinion that Oliver W. joined.

Both Holmes and Brandeis advocate for the importance of protecting freedom of speech in a democratic government. Despite Holmes seemingly disagreeing, he ultimately shares Brandeis’ belief that freedom of speech and democracy are interrelated.

The fundamental right of freedom of speech is crucial for citizens in a democratic government to freely express their opinions and criticisms. Without this essential freedom, citizens will be fearful to voice their thoughts, hindering the inclusion of all voices in a democratic system.

According to Tedford, the government should establish clear boundaries for speech that is dangerous or provocative, and differentiate it from speech that is legal. He disagreed with the conviction of Whitney, who had formed an unpopular Communist Labor Party, solely on the grounds of its unpopularity. Tedford believed that future convictions should not be swayed by a person’s lack of popularity. The case of Whitney v. Brandenburg held great significance in addressing this issue.

Ohio, specifically the concurrence penned by Justice Brandeis, shaped the views of Justices Black and Douglas on freedom of speech. This case solidified their belief that the First Amendment provides full protection for freedom of speech. Thus, Whitney v. Ohio is significant in their stance.

The reversal of Brandenburg v. Ohio led to California being overruled (Brandenburg Great; Tedford).

Cite this page

Supreme Court Case Brandenburg vs Ohio. (2018, Feb 20). Retrieved from

Remember! This essay was written by a student

You can get a custom paper by one of our expert writers

Order custom paper Without paying upfront