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The Court, by a 7-2 vote, upheld the conviction and Justice Sanford, for the majority, invoked the Holmes test of " clear and present danger," but went further. The state, he declared, has the power to punish those who abuse their rights to speech "by utterances inimical to the public welfare, tending to incite crime, disturb the public peace, or endanger the foundations of organized government and threaten its overthrow." In other words, if words have a "bad tendency" they can be punished.
The Whitney case is most noted for Justice Louis D. Brandeis's concurrence, which many scholars have lauded as perhaps the greatest defense of freedom of speech ever written by a member of the high court. (He and Justice Holmes concurred in the result because of certain technical issues, but there is no question that the sentiments are a distinct dissent from the views of the prevailing majority.)
Holmes in Abrams had been willing to defend speech on abstract grounds, believing that unpopular ideas should have their opportunity to compete in the " marketplace of ideas." But Brandeis had a much more specific reason for defending speech, and the power of his opinion derives from the connection he made between free speech and the democratic process. Citizens have an obligation to take part in the governing process, and they can only fulfill this obligation if they can discuss and criticize governmental policy fully and without fear. If the government can punish unpopular views, then it cramps freedom, and in the long run, will strangle democratic processes. Thus, free speech is not an abstract virtue, but a key element that lies at the heart of a democratic society.
Implicitly, Brandeis here moves far beyond the clear and present danger test, and he insists on what some have called a "time to answer" test: no danger flowing from speech can be considered clear and present if there is full opportunity for discussion. While upholding full and free speech, Brandeis tells legislatures that while they have a right to curb truly dangerous expression, they must define clearly the nature of that danger. Mere fear of unpopular ideas will not do.
Justice William O. Douglas believed that had Brandeis lived longer, he would have abandoned the clear and present danger test; Whitney is in fact the precursor to the position Douglas and Hugo L. Black would take in the 1950s and 1960s, that freedom of speechFreedom of speech is the right to freely say what you please, as well as the related right to hear what others have stated. It is self-explanatory. Recently, it has been commonly understood as encompassing full freedom of expression including the freedom is absolutely protected under the First Amendment. Brandeis does not go that far here, and his views were ultimately adopted by the Court in Brandenburg v. OhioBrandenburg v. Ohio 395 U. 444 ( 1969) was a United States Supreme Court case based on the First Amendment to the U. constitution. The case was argued before the Court on February 27, 1969 and decided June 9, 1969. Brandenburg was a Ku Klux Klan leader co, 395 U.S. 444 ( 1969For other uses, see Number 1969. For the movie, see 1969 (movie). Events January January 1 Australian media baron Rupert Murdoch purchases the largest selling British Sunday newspaper The News Of The World January 5 The Derry Riots leave over 100 people i).