BRADENBURG V.

OHIO
FACTS: The appellant in the case at bar assails the constitutionality of Ohio
Criminal Syndicalism Statute which provides that "advocating . . . the duty,
necessity, or propriety of crime, sabotage, violence, or unlawful methods of
terrorism as a means of accomplishing industrial or political reform" and for
voluntarily assembling with any society, group, or assemblage of persons formed to
teach or advocate the doctrines of criminal syndicalism. The information alleges
that appellant herein, leader of a Ku Klux Klan Group, telephoned an announcerreporter 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 (the prosecution used this films 1).
ISSUE: W/N THE OHIO CRIMINAL SYNDICALISM STATUTE IS
CONSTITUTIONAL?
HOLDING + RATIO: NO.
The statute in question purports to punish mere advocacy and to forbid, on pain of
criminal punishment, assembly with others merely to advocate the described type
of action. Jurisprudence has held that that the constitutional guarantees of free
speech and free press do not permit a State to forbid or proscribe 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
mere abstract teaching . . . of the moral propriety or even moral necessity for a
resort to force and violence is not the same as preparing a group for violent action
and steeling it to such action. A statute which fails to draw this distinction
impermissibly intrudes upon the freedoms guaranteed by the First and Fourteenth
Amendments. It sweeps within its condemnation speech which our Constitution has
immunized from governmental control.
1
One film showed 12 hooded figures, some of whom carried firearms. They were
gathered around a large wooden cross, which they burned. No one was present other than
the participants and the newsmen who made the film. Most of the words uttered during the
scene were incomprehensible when the film was projected, but scattered phrases could be
understood that were derogatory of Negroes and, in one instance, of Jews.
The
second film showed six hooded figures one of whom, later identified as the appellant,
repeated a speech very similar to that recorded on the first film. The reference to the
possibility of "revengeance" was omitted, and one sentence was added: "Personally, I
believe the nigger should be returned to Africa, the Jew returned to Israel." Though some of
the figures in the films carried weapons, the speaker did not.

JUSTICE DOUGLAS; CONCURRING: The "clear and present danger" doctrine

should have no place in the interpretation of the First Amendment. When one reads
the opinions closely and sees when and how the "clear and present danger" test
has been applied, great misgivings are aroused. First, the threats were often loud,
but always puny, and made serious only by judges so wedded to the status quo that
critical analysis made them nervous. Second, the test was so twisted and perverted
in Dennis as to make the trial of those teachers of Marxism an all-out political trial
which was part and parcel of the cold war that has eroded substantial parts of the
First Amendment.
Action is often a method of expression, and within the protection of the
First Amendment.
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.

DENNIS V. United States

Hands formulation: In each case, [courts] must ask whether the gravity of the
"evil," discounted by its improbability, justifies such invasion of free speech as is
necessary to avoid the danger.
FACTS: The defendants were convicted under 3 of the Smith Act2 for conspiring to
violate 2 of that Act, which makes it unlawful to organize or help to organize any
society, group, or assembly of persons who teach, advocate, or encourage the
overthrow or destruction of any government in the United States by force or
violence. The substance of the indictment is that the defendants between April 1,
1945, and July 20, 1948, agreed to bring about the dissolution of a body known as
2
The Court deemed it proper to first talk about the state. They opined
that the structure and purpose of the statute demand the inclusion of intent as an
element of the crime. Congress was concerned with those who advocate and
organize for the overthrow of the Government. Certainly those who recruit and
combine for the purpose of advocating overthrow intend to bring about that
overthrow. This presupposes that the obvious purpose of the statute is to protect
existing Government not from change by peaceable, lawful and constitutional
means, but from change by violence, revolution and terrorism. That it is within the
power of the Congress to protect the Government of the United States from armed
rebellion is a proposition which requires little discussion.

the Communist Political Association and to organize in its place the Communist
Party of the United States; that the aim of the new party was "the overthrow and
destruction of the Government of the United States by force and violence"; that the
defendants were to assume leadership of the Party and to recruit members for it
and that the Party was to publish books and conduct classes, teaching the duty and
the necessity of forceful overthrow. The jury found all the defendants guilty. With
one exception, each was sentenced to imprisonment for five years and to a fine of
$10,000. The convictions were affirmed by the Court of Appeals for the Second
Circuit.
ISSUES: (1) Whether either 2 or 3 of the Smith Act, inherently or as construed
and applied in the instant case, violates the First Amendment and other provisions
of the Bill of Rights?
(2) Whether either 2 or 3 of the Act, inherently or as construed and
applied in the instant case, violates the First and Fifth Amendments because of
indefiniteness?
HOLDING + RATIO:
1. NO. The very language of the Smith Act negates the interpretation which
petitioners would have us impose on that Act. It is directed at advocacy, not
discussion. Thus, the trial judge properly charged the jury that they could not
convict if they found that petitioners did "no more than pursue peaceful
studies and discussions or teaching and advocacy in the realm of ideas." He
further charged that it was not unlawful to conduct in an American college or
university a course explaining the philosophical theories set forth in the
books which have been placed in evidence. Such a charge is in strict accord
with the statutory language, and illustrates the meaning to be placed on
those words. Congress did not intend to eradicate the free discussion of
political theories, to destroy the traditional rights of Americans to discuss and
evaluate ideas without fear of governmental sanction. Rather Congress was
concerned with the very kind of activity in which the evidence showed these
petitioners engaged.
HOWEVER, THE Court still deemed it necessary to discuss the
constitutionality of the statute in terms of the First Amendment.
[The First] Amendment requires that one be permitted to believe what he
will. It requires that one be permitted to advocate what he will unless there is
a clear and present danger that a substantial public evil will result therefrom.
However, speech is not an absolute, above and beyond control by the
legislature when its judgment, subject to review here, is that certain kinds of

speech are so undesirable as to warrant criminal sanction. Nothing is more

certain in modern society than the principle that there are no absolutes, that
a name, a phrase, a standard has meaning only when associated with the
considerations which gave birth to the nomenclature.
In this case, the Court was squarely presented with the application of the
"clear and present danger" test, and must decide what that phrase
imports. The Court found that danger really existed. The mere fact that,
from the period 1945 to 1948, petitioners' activities did not result in an
attempt to overthrow the Government by force and violence is, of course, no
answer to the fact that there was a group that was ready to make the
attempt. The formation by petitioners of such a highly organized conspiracy,
with rigidly disciplined members subject to call when the leaders, these
petitioners, felt that the time had come for action, coupled with the
inflammable nature of world conditions, similar uprisings in other countries,
and the touch-and-go nature of our relations with countries with whom
petitioners were in the very least ideologically attuned, convince us that their
convictions were justified on this score. And this analysis disposes of the
contention that a conspiracy to advocate, as distinguished from the advocacy
itself, cannot be constitutionally restrained, because it comprises only the
preparation. It is the existence of the conspiracy which creates the danger.
2. NO. Where there is doubt as to the intent of the defendants, the nature of
their activities, or their power to bring about the evil, the Court will review the
convictions with the scrupulous care demanded by the Constitution. However,
the Court reiterated that they are not convinced that, because there may be
borderline cases at some time in the future, these convictions should be
reversed because of the argument that these petitioners could not know that
their activities were constitutionally proscribed by the statute .
We have shown the indeterminate standard the phrase necessarily connotes.
We do not think we have rendered that standard any more indefinite by
our attempt to sum up the factors which are included within its scope.
We think it well serves to indicate to those who would advocate
constitutionally prohibited conduct that there is a line beyond which they
may not go -- a line which they, in full knowledge of what they intend and
the circumstances in which their activity takes place, will well appreciate
and understand.

OSMEA V. COMELEC
FACTS: Emilio Osmea and Pablo Garcia, both seeking for reelection, filed this
petition involving a prayer for the reexamination of the validity of Sec. 11(b) of RA
6646 (prohibits mass media from selling or giving free of charge print space or air
time for campaign or other political purposes, except to the COMELEC). Prior to the
case at bar, the validity of the law was upheld in the case of NPC v. COMELEC
against claims of impingement on freedoms of speech and of the press.
ISSUE: W/N SEC. 11(b) OF RA 6646 IS UNCONSTITUTIONAL?
HOLDING + RATIO: NO.
1. There Is No Case or Controversy to Decide, Only an Academic
Discussion to Hold. Petitioners claims that the law operated to the grave
disadvantage of poor candidates by depriving them of the very medium
which they could afford was not supported by empirical data. The Court also
said that petitioners dont have the standing to forward such claims as they
are not financially underprivileged. They have not even submitted any claim
regarding any harm which they suffered due to the law.
2. There is no suppression of political ads but only a regulation of the
time and manner of advertising. The laws concern is not with the
message or content of the ad but with ensuring media equality between
candidates with deep pockets, as Justice Feliciano called them in his opinion
of the Court in NPC, and those with less resources. The law is part of a
package of electoral reforms adopted in 1987. Actually, similar effort was
made in 1970 to equalize the opportunity of candidates to advertise
themselves and their programs of government by requiring the COMELEC to
have a COMELEC space in newspapers, magazines, and periodicals and
prohibiting candidates to advertise outside such space, unless the names of
all the other candidates in the district in which the candidate is running are
mentioned with equal prominence.
3. Law Narrowly Drawn to Fit Regulatory Purpose. The main purpose of
11(b) is regulatory. Any restriction on speech is only incidental, and it is no
more than is necessary to achieve its purpose of promoting equality of
opportunity in the use of mass media for political advertising. The restriction
on speech, as pointed out in NPC, is limited both as to time and as to scope.
Also, the law is only applicable during election period.
4. The law did not abolish the playing field, rather it regulated it.
5. Congress itself even decided to be silent and not act on the bills
proposed to amend or even repeal the subject law.
6. CONTENT-NEUTRAL RSTRICTIONS. Unlike content-based restrictions, they
are not imposed because of the content of the speech. For this reason,
content-neutral restrictions are tests demanding standards. These regulations
need only a substantial governmental interest to support them. The clear
and present danger test is inapplicable to content-neutral restricitons. The
reason for this difference in the level of justification for the restriction of
speech is that content-based restrictions distort public debate, have improper

motivation, and are usually imposed because of fear of how people will react
to a particular speech. No such reasons underlie content-neutral regulations,
like regulations of time, place and manner of holding public assemblies under
B.P. Blg. 880, the Public Assembly Act of 1985. Applying the OBrien test in
this case, we find that 11(b) of R.A. No. 6646 is a valid exercise of the power
of the State to regulate media of communication or information for the
purpose of ensuring equal opportunity, time and space for political
campaigns; that the regulation is unrelated to the suppression of speech; that
any restriction on freedom of expression is only incidental and no more than
is necessary to achieve the purpose of promoting equality.