ABSTRACT
Brandenburg v. Ohio, 395 US 444 (1969), established the judicial standard for assessing whether specific speech constitutes a societal danger so as to lose its protection under the First Amendment to the Constitution. In using the words "tending to incite to crime," the majority in Whitney emphasized the tendency that speech might have to encourage impermissible acts, thereby maximizing the power of the government to limit speech. In a concurring opinion that read much like a dissent, Justice Louis D. Brandeis argued that speech had to be permitted unless it "would produce, or is intended to produce, a clear and imminent danger of some substantive evil." In Brandenburg, however, the Court endorsed Justice Brandeis's view and overruled Whitney. The Court's opinion was handed down per curiam (for the entire Court), which is a procedure the justices normally use only for non contentious holdings.
