Seditious Speech Tests
Masses
Judge Learned Hand
Content Based
Explicit Direct Advocacy Test
Schenck
Judge Oliver W. Holmes Context Based
Clear and Present Danger Test
Abrams
Court applies Schenck Test Holmes & Brandeis dissent
Clear and Imminent Danger Test (Holmes in dissent)
Gitlow
14th Amendment Incorporation of 1st Amendment Free-Speech
Protections Speech is bad in & of itself
Court establishes Bad (or Dangerous) Tendency Test
Holmes and Brandeis dissent
Gitlow
14th Amendment Incorporation of 1st Amendment Free-Speech
Protections Speech is bad in & of itself
Court establishes Bad (or Dangerous) Tendency Test
Holmes and Brandeis dissent
Whitney
Court applies Gitlow Bad Tendency Test
Brandeis with Holmes, concurs
Dennis
Chief Justice Vinson (quoting Hand from lower court)
Gravity of the Evil Test. “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. ..”