As the draft opinions in Ruthenberg v. Michigan were circulated for consideration, one thing was becoming increasingly obvious: It was Gitlow v. New York all over again – Sanford writing for the majority with Brandeis and Holmes in dissent.  Justice Sanford was moving along the same tracks that he had it Gitlow, wherein he wrote:

Every presumption is to be indulged in favor of the validity of the statute. . . .  And the case is to be considered “in the light of the principle that the State is primarily the judge of regulations required in the interest of public safety and welfare”; and that its police “statutes may only be declared unconstitutional where they are arbitrary or unreasonable   attempts to exercise authority vested in the State in the public interest.”^[105]

The Ruthenberg majority had not moved a doctrinal inch from its position in Gitlow, wherein Justice Sanford approvingly echoed the view of others:

“Manifestly, the legislature has authority to forbid the advocacy of a doctrine designed and intended to overthrow the government without waiting until there is a present and imminent danger of the success of the plan advocated. If the State were compelled to wait until the apprehended danger became certain, then its right to protect itself would come into being simultaneously with the overthrow of the government, when there would be neither prosecuting officers nor courts for the enforcement of the law.”^[106]

And Gitlow was nothing if not a reaffirmation of the bad tendency test: “In such case it has been held that the general provisions of the statute may be constitutionally applied to the specific utterance of the defendant if its natural tendency and probable effect was to bring about the substantive evil which the legislative body might prevent.”^[107]

     What was different in Ruthenberg was that Brandeis, rather than Holmes,^[108] was now penning the dissent.^[109]  Brandeis, like Holmes before him, refused to yield to Sanford’s reaffirmation of the bad tendency test.  But Brandeis was doing something more than reaffirming the clear and present danger test; he was moving beyond it . . . and with Holmes’ approval.