Brandeis spoke of Holmes’ “clear and present danger” formulation as if it were the starting point of his constitutional analysis, and stressed the importance of analytical clarity: “We must bear in mind . . . the wide difference legally between assembling and conspiracy, between advocacy and incitement, between preparation and attempt.”  Before proceeding to either his own reworking of Holmes’ test or any application of the law to the facts of the case, Brandeis infused his Ruthenberg dissent informed his readers of the values to be safeguarded by his notion of the First Amendment.  He wrote with the grace and democratic fervor of Walt Whitman: “In a democracy public discussion is a political duty.  This principle lies at the foundation of the American system of government.  Freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth.  Without free speech and assembly discussion would be futile.”^[110]  Combining that poetic elegance with Enlightenment reasoning, he went on to add what would become memorable lines: 

Those who won our independence by revolution valued liberty both as an end and as a means.  They believed liberty to be the secret of happiness and courage to be the secret of liberty.  They recognized that the greatest menace to freedom is an inert people; that the greatest menace to stable government is repression; and that the fitting remedy for evil counsels good ideas.  Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law – the argument of force in its worst form.  Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so as to guarantee free speech and assembly.

     Returning to doctrine, Brandeis categorically rejected Gitlow and the majority in Ruthenberg: “Only an emergency can justify repression.  Mere bad tendency of the utterance cannot.”  Tweaking Holmes’ test while giving it greater staying power, Brandeis then declared: “[N]o danger flowing from speech can be deemed clear and present, unless the incidence of evil apprehended is so imminent that it may befall before there is opportunity for full discussion.”  Moreover, “even imminent danger cannot justify resort to prohibition of functions essential to effective democracy, unless the evil apprehended is relatively serious.”    

     Brandeis’ draft dissent was equally striking in the lengths to which it went to apply the Justice’s vision of the First Amendment to the facts in the case.  The discussion of Communist doctrine was so extensive in Ruthenberg that it might have made the petitioner happy to have such information readily available in a nationally distributed government document.  “The [Party] teaching is that American Democracy is a fraud,” wrote Brandeis, “that not merely the practice, but the form of our government makes it the effective instrument of capitalist control.”  Such descriptions might have struck some as out of place, because their very presentation might be understood as an expression of sympathy.  But the progressive Brandeis spared no adjectives in expressing his disdain for the Party’s “foul” or “noxious doctrine” made possible by the “dictatorship of the proletariat.”  Even so, he felt the need to remind Americans: “Those who won our independence by revolution valued liberty both as an end and as a means.”  In other words, the ideal of revolution need not be judged as un-American.