Background Facts:  Brandenburg, a Ku Klux Klan leader, made a speech at a Klan rally.  He was convicted under the Ohio Criminal Syndicalism statue for "advocat(ing) … the duty, necessity, or propriety of crime, sabotage, violence, or unlawful methods or terrorism as a means of accomplishing industrial or political reform" and for "voluntarily assembl(ing) with any society, group or assemblance or persons formed to teach or advocate the doctrines of criminal syndicalism."  Neither the indictment nor the trial judge's instructions refined the statue's definition of the crime in terms of mere advocacy not distinguished from incitement to imminent lawless actions.  Held:  Since the statute, by its words and as applied, purports to punish mere advocacy and to forbid, on pain of criminal punishment, assembly with others merely to advocate the described type of actions, it falls within the condemnation of the First and Fourteenth Amendments.  Freedoms of speech and press do not permit a State to forbid advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.  The record shows that a man, identified at trial as the appellant, telephoned an announcer-reporter on the staff of a Cincinnati television station and invited him to come to a Ku Klux Klan "rally" to be held at a farm in Hamilton County.  With the cooperation of the organizers, the reporter and a cameraman attended the meeting and filmed the events.  Portions of the films were later broadcast on the local station and on a national network.

Issues:  Did Ohio's criminal syndicalism law, prohibiting public speed that advocates various illegal activities, violate Brandenburg's right to free speech as protected by the First and Fourteenth Amendments?

Decision and Rationale:  The Court's Per Curiam opinion held that 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.

Results:  As a result of this case, any action that falls under the now broad, due to this specific case, definition of what actually incites imminent lawless action will be labeled as unconstitutional. Because of the two-pronged test, speeches are now evaluated on this principle, and thus deemed unconstitutional or not based on this factor.