in acts involving the danger of
substantive evil without any reference to language itself,"[97] and has
no application "where the legislative body itself has previously
determined the danger of substantive evil arising from utterances of a
specified character."[98]

Two years later, in Whitney _v._ California,[99] upon evidence which
tended to establish the existence of a conspiracy to commit certain
serious crimes, the conviction was sustained unanimously. In a
concurring opinion in which Justice Holmes joined, Justice Brandeis
restated the test of clear and present danger to include the intent to
create such danger: "But, although the rights of free speech and
assembly are fundamental, they are not in their nature absolute. Their
exercise is subject to restriction, if the particular restriction
proposed is required in order to protect the state from destruction or
from serious injury, political, economic or moral. That the necessity
which is essential to a valid restriction does not exist unless speech
would produce, or is intended to produce, a clear and imminent danger of
some substantive evil which the State constitutionally may seek to
prevent has been settled. _See_ Schenck _v._ United States, 249 U.S. 47,
52. * * *, no danger flowing from speech can be deemed clear and
present, unless the incidence of the evil apprehended is so imminent
that it may befall before there is opportunity for full discussion. If
there be time to expose through discussion the falsehood and fallacies,
to avert the evil by the processes of education, the remedy to be
applied is more speech, not enforced silence."[100]

ACCEPTANCE OF THE CLEAR AND PRESENT DANGER TEST

Ten years later, in Herndon _v._ Lowry,[101] a narrowly divided Court
drew a distinction between the prohibition by law of specific utterances
which the legislators have determined have a "dangerous tendency" to
produce substantive evil and the finding by a jury to that effect, and
on this basis reversed the conviction of a communist organizer under a
State criminal syndicalism statute, with the intimation that where it is
left to a jury to determine whether particular utterances are unlawful,
the test of clear and present danger must be applied.[102] Finally, in
Thornhill _v._ Alabama,[103] the Court went the full length in
invalidating a State law against picketing because[104] "* * * no clear
and present danger of destruction of life or property, or invasion of
the r