ACTUAL MALICE -- NEW YORK TIMES V. SULLIVAN
Imminent Lawless Action
Brandenburg v. Ohio
Clarence Brandenburg, a Ku Klux Klan (KKK) leader in rural Ohio, contacted a reporter at a Cincinnati TV station and invited him to come and cover a KKK rally. Portions of the rally were filmed, showing several men in robes and hoods, some carrying firearms, first burning a cross and then making speeches. One of the speeches made general reference to the possibility of gaining revenge on some minority groups. After being seen on TV, Brandenburg was charged and convicted of advocating violence.
When the case was appealed to the Supreme Court in 1969, the majority found the governemtn cannot constitutionally punish abstract advocacy of force or law violation. The opinion states:
“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. -- Justice Abe Fortas