 The Court continued to use the bad tendency test during the early twentieth century in cases such as 1919 's Abrams v. United States which upheld the conviction of anti @-@ war activists who passed out leaflets encouraging workers to impede the war effort . In Abrams , Holmes and Justice Brandeis dissented and encouraged the use of the clear and present test , which provided more protection for speech . In 1925 's Gitlow v. New York , the Court extended the First Amendment to the states , and upheld the conviction of Gitlow for publishing the " Left Wing Manifesto " . Gitlow was decided based on the bad tendency test , but the majority decision acknowledged the validity of the clear and present danger test , yet concluded that its use was limited to Schenck @-@ like situations where the speech was not specifically outlawed by the legislature . Brandeis and Holmes again promoted the clear and present danger test , this time in a concurring opinion in 1927 's Whitney v. California decision . The majority did not adopt or use the clear and present danger test , but the concurring opinion encouraged the Court to support greater protections for speech , and it suggested that " imminent danger " – a more restrictive wording than " present danger " – should be required before speech can be outlawed . After Whitney , bad tendency tests continued to be used by the Court in cases such 1931 's Stromberg v. California , which held that a 1919 California statute banning red flags was unconstitutional . 
