mphasized the substantial character of the Government's interest in
preventing its own overthrow by force. "Indeed," said he, "this is the
ultimate value of any society, for if a society cannot protect its very
structure from armed internal attack, it must follow that no subordinate
value can be protected."[213] The opinion continues: "If, then, this
interest may be protected, the literal problem which is presented is
what has been meant by the use of the phrase 'clear and present danger'
of the utterances bringing about the evil within the power of Congress
to punish. Obviously, the words cannot mean that before the Government
may act, it must wait until the _putsch_ is about to be executed, the
plans have been laid and the signal is awaited. If Government is aware
that a group aiming at its overthrow is attempting to indoctrinate its
members and to commit them to a course whereby they will strike when the
leaders feel the circumstances permit, action by the Government is
required. The argument that there is no need for Government to concern
itself, for Government is strong, it possesses ample powers to put down
a rebellion, it may defeat the revolution with ease needs no answer. For
that is not the question. Certainly an attempt to overthrow the
Government by force, even though doomed from the outset because of
inadequate numbers or power of the revolutionists, is a sufficient evil
for Congress to prevent. The damage which such attempts create both
physically and politically to a nation makes it impossible to measure
the validity in terms of the probability of success or the immediacy of
a successful attempt."[214] The Chief Justice concluded this part of his
opinion by quoting from Chief Judge Learned Hand's opinion for the
Circuit Court of Appeals in the same case, as follows: "'In each case
[courts] must ask whether the gravity of the evil, discounted by its
improbability, justifies such invasion of free speech as is necessary to
avoid the danger.'"[215] In short, if the evil legislated against is
serious enough, advocacy of it in order to be punishable does not have
to be attended by a clear and present danger of success.

But at this point the Chief Justice appears to recoil from this abrupt
dismissal of the clear and present danger formula for the more serious
cases, and he makes a last moment effort to rescue the babe that he has
tossed out with the bathwater. He says: "As articulated by Chief Judge
Hand, it is