The significance of this latter opinion would appear to derive from the fact that by employing the descriptive adjectives “silly” and “puny” Holmes transformed his clear and present danger doctrine into a vehicle for opposing conviction of persons for what would seem, on the face of the record, possibly a more aggravated offense than Schenck’s. Thus the “clear and present danger” test in application may become entangled with the sentiment of the person applying it. Secondly, it is important to note the appraisal which Holmes made as to the military significance of American intervention in Russia. In his estimation, had it been thwarted our war effort would not have been effected. As a dissenter Holmes, with the support of Brandeis, persisted in applying the “clear and present danger” test in a number of later decisions, notably the _Gitlow_ case and the _Whitney_ case.[745] In the post-World War II era, however, this test definitely appears to have been radically altered, if not conclusively rejected. Thus in _Dennis_ v. _United States_, sustaining the conviction under the Smith Act[746] of eleven top Communist Party leaders, Judge Learned Hand, presiding over the U.S. Court of Appeals for the Second Circuit, stated: “The phrase, ‘clear and present danger,’ has come to be used as a shorthand statement of those among such mixed or compounded utterances which the Amendment does not protect.... It is a way to describe a penumbra of occasions, even the outskirts of which are indefinable, but within which, as is so often the case, the courts must find their way as they can. In each case they must ask whether the gravity of the ‘evil,’ discounted by its improbability, justified such invasion of free speech as is necessary to avoid the danger.... “... When does the conspiracy become a ‘present danger’? The jury has found that the conspirators will strike as soon as success seems possible, and obviously, no one in his senses would strike sooner. [Meanwhile, the Communist leaders claim the right to continue their activities.] That position presupposes that the Amendment assures them freedom for all preparatory steps and in the end, the choice of initiative, dependent upon the moment when they believe us, who must wait the blow, to be the worst prepared to receive it.”[747] By substituting “probability” for “imminence” in time, Hand substantially changed the clear and present danger doctrine. On appeal the Supreme Court, with certain modifications, in effect affirmed Hand’s redefinition.[748]