No, Ds’ convictions are upheld because the First Am. does not protect their violation of the Smith Act. Justice Vinson purports to apply the “Clear and Present Danger” test, which he correctly states has been used for the last few decades, but uses Hand’s interpretation of the test. “In each case [courts] must ask whether the gravity of the ‘evil,’ discounted by its improbability [of coming about], justifies such invasion of free speech as is necessary to avoid the danger.” He uses Hand’s approach because “it is as succinct and inclusive as any other we might devise at this time.”
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