Lesson Plan: Landmark Supreme Court Case Brandenburg v. Ohio (1969)

Supreme Court Case Brandenburg v. Ohio: Background

Attorney Katie Fallow and Professor Nadine Strossen provide context for this case as they explain the criminal syndicalism laws and the First Amendment.


Brandenburg v. Ohio established the Imminent Lawless Action test used to determine when speech protected under the First Amendment can be lawfully restricted. In Brandenburg, the Court held that hate speech is protected under the First Amendment as long as it does not provoke violence.


  • STEP 1:

    As a class, view the following videos and engage in class discussion to provide context for this case and its connection with the First Amendment. Use the accompanying questions as a guide.

    HANDOUT: Brandenburg v. Ohio (1969) (Google Doc)

  • VIDEO CLIP 1: Background (5:31)

    • What were the criminal syndicalism laws?

    • Explain the significance of Schenck v United States.
  • VIDEO CLIP 2: Ohio Criminal Syndicalism Statute (4:15)

    • Explain the application of the Ohio Criminal Syndicalism Statute to various groups.

    • Describe the societal attitude regarding the Ku Klux Klan at the time.
  • VIDEO CLIP 3: Case Timeline (1:49)

    • Who was Clarence Brandenburg?

    • Explain the timeline of this case.

    • Why was it significant that this event occurred on private property?
  • VIDEO CLIP 4: Delegate Eleanor Holmes Norton (1:44)

    • Describe Delegate Eleanor Holmes Norton's perspective on this case.
  • STEP 2:

    View this collection of videos to learn about the makeup of the Supreme Court, the Constitutional arguments, and the decision in this case.

  • VIDEO CLIP 5: The Supreme Court (5:07)

    • Describe the makeup of the Supreme Court during this time.

    • Explain Justice Black's history with the Ku Klux Klan and his perspective on equal rights and free speech.
  • VIDEO CLIP 6: Oral Arguments (6:50)

    • Explain Allen Brown's argument for Clarence Brandenburg before the Supreme Court.

    • Explain Leonard Kirschner's argument for the prosecution.
  • VIDEO CLIP 7: The Decision (1:20)

    • Explain the Court's decision and the three elements of the Brandenburg test that resulted from this case as discussed by Katie Fallow.
  • Compare and contrast the Constitutional arguments made in Brandenburg v. Ohio to those in the following Supreme Court Case:

    Landmark Supreme Court Case: Schenck v United States

    Schenck v United States helped define the limits of the First Amendment right to free speech, particularly during wartime. It created the “clear and present danger” standard, which explains when the consequences of speech allow the government to limit it.

    In this case, the Court chose to unanimously uphold activist Charles Schenck’s conviction after he distributed leaflets urging young men to resist the draft during World War I.

Additional Resources

  • Lesson Plan: Landmark Supreme Court Case: Schenck v United States

    The Supreme Court has the power to interpret the Constitution. Its rulings on cases determine the meaning of laws and acts of Congress and the president. Knowing the key decisions of the Supreme Court and the precedents they set is vital in understanding the meaning of laws, how our country has changed over time, and the direction the country is currently headed. In this lesson students will examine the case of Schenck v. United States.

  • C-SPAN Landmark Cases Series


  • Advocacy
  • American Civil Liberties Union
  • Anarchy
  • Censorship
  • Communism
  • Criminal Syndicalism Laws
  • Imminent
  • Incendiary
  • Incite
  • Intolerance
  • Per Curiam
  • Socialism
  • Unfettered
  • Watershed


Civil Rights & Civil LibertiesSupreme Court Cases


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