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NCJ Number: 157505 Find in a Library
Title: Justice Brennan and the Brandenburg Decision: A Lawgiver in Action
Journal: Judicature  Volume:79  Issue:1  Dated:(July-August 1995)  Pages:24-29
Author(s): B Schwartz
Date Published: 1995
Page Count: 6
Type: Legislation/Policy Analysis
Format: Article
Language: English
Country: United States of America
Annotation: If justices are considered in terms of their role in the decision process, Justice William Brennan, Jr. was the most influential associate justice in United States Supreme Court history; his role was crucial in the 1969 Brandenburg v. Ohio decision, which replaced the clear and present danger test and thus produced a quantum change in First Amendment law.
Abstract: The clear and present danger tests was consider one of the great contributions of Oliver Wendell Holmes to modern constitutional law. The change from this test was the consequence of Justice Brennan's redraft of the original opinion, although his name does not appear in the public report of the case. Although the Brennan made few alterations in the decision, they had a major impact. If Fortas's draft had been issued as the Court's opinion, Brandenburg would have considered a case virtually reaffirming the clear and resent danger test. Brennan's redraft made two crucial changes that virtually eliminated the test as the standard in First Amendment cases. He eliminated the positive reference to the Holmes-Brandeis reaffirmation of the clear and present danger test and changed Fortas's statement of the governing test, producing a test more protective of speech than the clear and present danger test. Thus, the Brandenburg decision expanded First Amendment protection of speech advocating unlawful action. Footnotes
Main Term(s): US Supreme Court decisions
Index Term(s): Criminology; Freedom of speech; Judges; Judicial activism
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