43 Drake L. Rev. 1 (1993-1995)
The Road to Brandenburg: A Look at the Evolving Understanding of the First Amendment

handle is hein.journals/drklr43 and id is 15 raw text is: DAKE LAW REVIEW

Volume 43                       1994                        Number 1

THE ROAD TO BRANDENBURG:
A LOOK AT THE EVOLVING UNDERSTANDING
OF THE FIRST AMENDMENT
John F. Wirenius*
TABLE OF CONTENTS
I. Introduction .......................................... 2
II. Early Views Before the Conservative Revolution ............... 4
A. The Pre-Civil War Understanding .......................  4
B. Enter the Fourteenth Amendment ....................... 7
III.  The Conservative Revolution  .............................  10
A .  Early  Noises  ......................................  10
B. The Conservative Revolution Redux:
The Birth of Substantive Protection ......................  13
C. Common Law by Uncommon Lawyers:
Holmes, Hand, and Constitutional Reasoning .............. 18
D. The Holmes-Brandeis Dissents .........................  24
E. Justice Brandeis Recasts Clear and Present Danger .......... 30
IV.  The Nascent Tradition  ..................................  35
A. Dennis v. United States: Speech Wins by Losing ........... 36
B.  The Dennis Dissents  ................................  40
C. Yates, Scales, and Noto: Justice Harlan's Balancing Act ...... 42
D. Brandenburg: Who Shall Claim the Victory? .............. 47
V .  Conclusion  ..........................................  49
* Associate, Solovay & Edlin, New York, New York. B.A., Fordham University, 1987;
J.D., Columbia University School of Law, 1990. The author would like to thank Vincent Blasi of
the Columbia Law School for suggesting several fruitful areas of inquiry, as well as Harold
Ferguson, Michael T. Fois, and Franz Allina for their comments on an earlier draft of this Article.
Finally, most of all, the author thanks Holly-Gale Millette, who, like Fanny Holmes before her, has
made life poetry for her husband.

What Is HeinOnline?

HeinOnline is a subscription-based resource containing nearly 2,700 academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline with pricing starting as low as $29.95

Access to this content requires a subscription. Please visit the following page to request a quote or trial:

Already a HeinOnline Subscriber?