[9] Portions of the rally were filmed, showing several men in robes and hoods, some carrying firearms, first burning a cross and then making speeches.

In relevant part, the statute – enacted in 1919 during the First Red Scare – proscribed "advocat[ing] ... the duty, necessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform" and "voluntarily assembl[ing] with any society, group or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism".

The U.S. Supreme Court reversed Brandenburg's conviction, holding that government cannot constitutionally punish abstract advocacy of force or law violation.

The earlier draft had originally been prepared by Justice Abe Fortas before he was forced to resign in the midst of an ethics scandal, and it would have included a modified version of the clear and present danger test.

However, Brandenburg completely did away with Dennis's central holding and held that "mere advocacy" of any doctrine, including one that assumed the necessity of violence or law violation, was per se protected speech.

It may be that principles of stare decisis figured in the Court's decision to avoid overruling the relatively recent Dennis, but the distance between the two cases' approach is obvious and irreconcilable.

He briefly traced the history of the "clear and present danger" test, illustrating how it had been used over the years since its debut in Schenck to dismiss dozens of what Douglas viewed as legitimate First Amendment claims.

A short section of Douglas's opinion indicated that he might be open to allowing the government greater latitude in controlling speech during time of "declared war" (making clear that he was not referring to the then-current Vietnam War), although he only phrased that possibility in terms of doubt (as opposed to his certainty that the clear and present danger test was irreconcilable with the First Amendment during time of peace).

Douglas also argued for the legitimate role of symbolic speech in First Amendment doctrine, using examples of a person ripping up a Bible to celebrate the abandonment of his faith or tearing a copy of the Constitution in order to protest a Supreme Court decision, and assailed the previous term's United States v. O'Brien,[17] which had allowed for the prosecution of a man for burning his draft card.

It resolved the debate between those who urged greater government control of speech for reasons of security and those who favored allowing as much speech as possible and relying on the marketplace of ideas to reach a favorable result, leaving the law in a state along the lines of that which Justices Louis Brandeis, and, post-Schenck, Oliver Wendell Holmes advocated in several dissents and concurrences during the late 1910s and early 1920s.

Lyrissa Lidsky, a scholar of the law, stated that "Brandenburg's sanguine attitude toward the prospect of violence rests on an assumption about the audiences of radical speech.