The Supreme Court refined the clear and present danger concept to clearly require an imminence test.

Charlotte Whitney was a member of the International Workers of the World (IWW) and briefly a member of the Communist Labor Party, which advocated the overthrow of the U.S. government. There was no indication that Whitney did more than attend meetings, but the jury convicted her on criminal syndicalismCriminal syndicalism charges. The Supreme Court unanimously sustained her conviction and the California state criminal syndicalism statute under which she was convicted. Justice Edward T. Sanford,Sanford, Edward T.;Whitney v. California[Whitney v. California] in his opinion for the Court, cited the state’s power to protect the public from violence resulting from political action.Assembly and association, freedom of;Whitney v. California[Whitney v. California]

Justices Oliver Wendell Holmes and Louis D. Brandeis concurred, with some very significant differences from the majority. They argued that Whitney’s lawyers failed her and therefore the conviction needed to stand, but they believed her lawyers might have succeeded had they used the argument that clear and present danger needed to be imminently present for her to be convicted. The justices insisted that imminence was a crucial requirement before the government could restrain speech. Only with the concept of imminence did the clear and present danger doctrine offer much hope of protecting free speech. Eventually Whitney was overturned by the Court in Brandenburg v. Ohio[case]Brandenburg v. Ohio[Brandenburg v. Ohio] (1968).

Abrams v. United States

Assembly and association, freedom of

Bad tendency test

Brandenburg v. Ohio

Clear and present danger test

Gitlow v. New York

Schenck v. United States

Speech and press, freedom of

Stromberg v. California

Whitney v. California