<P> A unanimous Court in a brief per curiam opinion in Brandenburg v. Ohio (1969), abandoned the disfavored language while seemingly applying the reasoning of Schenck to reverse the conviction of a Ku Klux Klan member prosecuted for giving an inflammatory speech . The Court said that speech could be prosecuted only when it posed a danger of "imminent lawless action," a formulation which is sometimes said to reflect Holmes reasoning as more fully explicated in his Abrams dissent, rather than the common law of attempts explained in Schenck . Brandenburg is also taken to have repudiated the clear - and - present - danger standard as construed in Dennis, and to have adopted something more like the explication given by Holmes and Brandeis in subsequent opinions . Partly because the standard for protecting expressive behavior under the First Amendment was stated differently in his different opinions, "revisionist" scholars have argued that Holmes changed his mind in the summer of 1919, and that after writing three opinions for a unanimous court, he stated a different and more liberal view in his Abrams dissent a few weeks later . Bolstered by this argument, a number of advocates for freedom of expression have insisted that the Supreme Court has rejected Schenck and the majority opinion in Abrams, and in practice has followed the reasoning of Holmes' Abrams dissent and Brandeis' and Holmes' concurring opinion in Whitney . The Court has repeatedly reaffirmed Schenck, however, holding that the destruction of a draft card could be prosecuted as a violation of Selective Service regulations even though carried out as a protest (United States v. O'Brien), but that burning an American flag at a protest could not be prosecuted because it posed no danger of causing a harm that the legislature had power to forbid (Texas v. Johnson). </P> <P> In 2010, the Supreme Court rejected the argument of Holmes's Abrams dissent . The facts in Holder v. Humanitarian Law Project were similar to those in Abrams: persons who planned to advocate the causes of Sri Lankan and Kurdish organizations, designated terrorist groups, had a reasonable fear of prosecution under the USA PATRIOT Act, 18 U.S.C. Section 2339B, for providing material support for terrorist organizations . The Supreme Court held that such prosecutions were not barred by the First Amendment, expressly rejecting the argument that a "specific intent" to assist terrorist acts was required, rejecting also the claim of the dissenting justices that the case was governed by the concurrence in Whitney, or by the standard stated in Brandenburg . Finally, in Citizens United v. FEC, the majority of the Court rejected the argument made by the dissenters that the First Amendment was premised on the value of democratic deliberation in the "marketplace of ideas ." Instead, they held that First Amendment rights are individual, not based on communitarian considerations . </P> <P> As the precedents stand at present, therefore, it appears that Schenck is still good law . Criminal attempts may be prosecuted even if carried out solely through expressive behavior, and a majority of the justices continue to view such prosecutions in the light of the majority opinion in Abrams: the Court will defer to legislative judgments, at least in national security matters, that some forms of political advocacy may be prosecuted . </P>

The question in every case is whether the words used