ourt, seven Justices to two,
declined to follow it. This was in Abrams _v._ United States,[91] in
which the Court affirmed a conviction for spreading propaganda
"obviously intended to provoke and to encourage resistance to the United
States in the war." Justices Holmes and Brandeis dissented on the ground
that the utterances did not create a clear and imminent danger[92] of
substantive evils. And the same result was reached in Schaefer _v._
United States,[93] again over the dissent of Justices Holmes and
Brandeis, the Court saying that: "The tendency of the articles and their
efficacy were enough for the offense * * *."[94]

THE GITLOW AND WHITNEY CASES

Gitlow was convicted under a New York statute making it criminal to
advocate, advise or teach the duty, necessity or propriety of
overturning organized government by force or violence.[95] Since there
was no evidence as to the effect resulting from the circulation of the
manifesto for which he was convicted and no contention that it created
any immediate threat to the security of the State, the Court was obliged
to reach a clear cut choice between the common law test of dangerous
tendency and the clear and present danger test. It adopted the former
and sustained the conviction, saying "By enacting the present statute
the state has determined, through its legislative body, that utterances
advocating the overthrow of organized government by force, violence, and
unlawful means, are so inimical to the general welfare, and involve such
danger of substantive evil, that they may be penalized in the exercise
of its police power. That determination must be given great weight * * *
That utterances inciting to the overthrow of organized government by
unlawful means present a sufficient danger of substantive evil to bring
their punishment within the range of legislative discretion is clear.
Such utterances, by their very nature, involve danger to the public
peace and to the security of the state. They threaten breaches of the
peace and ultimate revolution. And the immediate danger is none the less
and substantial because the effect of a given utterance cannot be
accurately foreseen. The state cannot reasonably be required to measure
the danger from every such utterance in the nice balance of a jeweler's
scale."[96] Justice Sanford distinguished the Schenck Case by asserting
that its "general statement" was intended to apply only to cases where
the statute "merely prohibits certa