In the 1936 case of Herndon v. Lowry, Angelo Herndon, an African American and member of the Communist Party was convicted under a Georgia law for attempting to incite insurrection after he organized a demonstration against unemployment in Atlanta. He was sentenced to 18-20 years hard labor. The Supreme Court overturned his conviction with a 5-4 decision, arguing that Georgia had failed to show any clear and present danger posed by Herndon's actions or intentions. This ruling expanded First Amendment protections by applying them more broadly within states' legislation on sedition and insurrection.

In the dissenting opinion for Herndon v. Lowry, Justice McReynolds disagreed with the majority's decision to overturn Angelo Herndon's conviction under Georgia law for inciting insurrection. He argued that there was sufficient evidence presented at trial to support a finding of guilt and that it was not within the Supreme Court’s jurisdiction to reevaluate this evidence or question its sufficiency. Furthermore, he contended that Georgia had a legitimate interest in preventing violent overthrow of its government and thus could constitutionally criminalize such behavior. The justice also expressed concern about potential implications of the ruling on states' rights, arguing that it undermined their ability to maintain order and protect themselves against internal threats.