CLANDESTINE SPEECH AND THE FIRST AMENDMENT

In a comment" written at the conclusion of the Communist leaders' trial Professor Nathanson noted that Judge Medina's instructions required for a verdict of guilty that the jury "find only that the defendants intended to accomplish the overthrow of government 'as speedily as circumstances would permit it to be achieved.' " This, wrote Professor Nathanson, was "inconsistent with the clear-and-present-danger test as formulated by Holmes and Brandeis, unless there were other circumstances in the facts actually presented which made that test inapplicable." A major part of the balance of the comment is an attempt to refute a suggestion that clandestine, underground utterance (unlike that which is openly directed to the public) is not entitled to the protection of the Holmesean clear and present danger test.