Indeed, the justice’s own law clerk, James Landis, cautioned Brandeis about this problem.  In his October 27, 1926 memorandum on the Whitney case, Landis incisively observed: 

[I]t may be argued that we have a situation where [the IWW’s] industrial crimes were likely to occur whether the Communist Labor Party of California existed or not; [but] that the danger of such crimes was substantially increased by (a) the existence of a group like the CLP which, while it did not advocate sabotage, yet justified violation of law as a remedy for the ills of the proletariat, the same ills, to a certain extent, which disturbed the IWW, or by (b) expression of approval given by the CLP, or (c) by both together.  The argument of course assumes that the evil tendency of the speech or assembly is enough to remove it from the protection of the fourteenth amendment . . . .  But in any case where there is no direct incitement, it is very dangerous to allow a limitation on the right of free speech or assembly to be based on an evil tendency, whether to create a danger or to increase an existing danger.  Many innocent activities, certainly protected by free speech, might be condemned under such a rule.  .  .  .  Hence we ought to require at least a clear demonstration of the effect or tendency of the acts punished in increasing the danger.

Landis went on to apply the Whitney facts to his understanding of the “imminent incitement” test:

     Such a demonstration doesn’t exist here.  .  .  .  (i) The reference in the National Program of the CLP of America to the IWW is nothing more than a statement of approval; a pledge of “whole-hearted support” in a political platform may be disregarded.  The statement is in very general terms, it may or may not be understood to refer to the criminal activities of the IWW, [and it] was not communicated directly to the people whom it is here argued it will influence.  .  .  .  Hence it is very doubtful whether the Cal. Party’s statement of approval . . . would carry a dynamic quality such as would lead to action on the strength of it.  (ii) I find more plausible the idea that the very existence of the CLP of Cal., a group with similar ultimate aims and an ethic which excuses law-violation, would lend encouragement to these active syndicalists.  The suggestion may indicate the danger of the whole theory which would uphold the statute.^[158]

What, then, was Justice Brandeis thinking?  One is left to wonder why he proceeded beyond the jurisdictional analysis to the substantive discussion that could prove so problematic.