The defendant, a leader of a Ku Klux Klan group, spoke at a Klan rally at which a large wooden cross was burned and some of the other persons present were carrying firearms. His remarks included such statements as: "Bury the niggers," "the niggers should be returned to Africa," and "send the Jews back to Israel." In an Ohio state court, he was convicted, under Ohio's criminal syndicalism statute, both for 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. Although he challenged the constitutionality of the criminal syndicalism statute under the First and Fourteenth Amendments to the Federal Constitution, the intermediate appellate court of Ohio affirmed his conviction without opinion, and the Supreme Court of Ohio dismissed his appeal on the ground that no substantial constitutional question was presented.
On appeal, the United States Supreme Court reversed. In a per curiam opinion, expressing the unanimous views of the court and overruling Whitney v California (1927) 274 US 357, 71 L Ed 1095, 47 S Ct 641, it was held that the constitutional guaranties of free speech and free press did not permit a state to forbid or proscribe advocacy of the use of force or of law violation, except where such advocacy was directed to inciting or producing imminent lawless action and was likely to incite or produce such action, and that since the Ohio criminal syndicalism statute, by its own words and as applied, purported to punish mere advocacy and to forbid, on pain of criminal punishment, assembly with others merely to advocate the described type of action, the statute violated the First and Fourteenth Amendments.

Black and Douglas, JJ., each concurring separately, joined the court's opinion, but expressed disagreement with the "clear and present danger" test which had been applied in an earlier decision cited by the court.

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