Substantively, the similarities and differences between Brandeis’ opinions in Ruthenberg and Whitney are notable.  Taken together, they provide a fuller view of Brandeis’ ideas – both as conceptualized and applied – than has heretofore been known.  Brandeis’ Ruthenberg opinion lacks some of the polish that made his Whitney concurrence so remarkable.  Understandably, Ruthenberg does not contain at least one memorable passage: “Men feared witches and burnt women.”^[127]   And it is not as comprehensive in its formulation of the clear and present danger test.  What Whitney lacks, in contrast, is precisely what Ruthenberg proffers: an extended and forceful application of Brandeis’ approach to the facts of the case. 

     Given Brandeis’ jurisdictional concerns in Whitney, he did not examine the application of his test to the facts.  As Brandeis explained in Whitney:

     Whether in 1919, when Miss Whitney did the things complained of, there was in California such clear and present danger of serious evil, might have been made the important issue in the case.  She might have required that the issue be determined either by the court or the jury.  She claimed below that the statute as applied to her violated the federal Constitution; but she did not claim that it was void because there was no clear and present danger of serious evil, nor did she request that the existence of these conditions of a valid measure thus restricting the rights of free speech and assembly be passed upon by the court or a jury.  On the other hand, there was evidence on which the court or jury might have found that such danger existed.^[128]

Among possible reasons for such failures of proof, two stand out as most likely.  First, Whitney’s trial lawyers focused on her personal innocence rather than on the criminal culpability of the group.  In contrast, Ruthenberg’s lawyers built a strong record concerning the legal character of the Communist Party of America.  Second, since the First Amendment had not at the time of the trial been applied to the states, Whitney’s counsel may not have believed it necessary to request a clear and present danger jury instruction.  (On this point, more will be said in Part III.)  Ruthenberg’s attorneys, however, requested (though were denied) a clear and present danger jury instruction.  Hence, the jurisdictional problems that plagued Whitney were absent in Ruthenberg’s case.