Dennis v. United States - Further Readings

Petitioners
Eugene Dennis, Benjamin Davis, John Gates, Gil Green, Gus Hall, Irving Potash, Jack Stachel, Robert Thompson, John Williamson, Henry Winston, Carl Winter
Respondent
United States
Petitioners' Claim
That the Smith Act violates the First Amendment and other provisions of the Bill of Rights of the U.S. Constitution.
Chief Lawyers for Petitioners
George W. Crockett, Jr., Abraham J. Isserman, Harry Sacher
Chief Lawyers for Respondent
Philip B. Perlman, Irving S. Shapiro
Justices for the Court
Harold Burton, Felix Frankfurter, Robert H. Jackson, Sherman Minton, StanleyForman Reed, Fred Moore Vinson (writing for the Court)
Justices Dissenting
Hugo Lafayette Black, William O. Douglas (Tom C. Clark did not participate)
Place
Washington, D.C.
Date of Decision
4 June 1951
Decision
Provisions of the Smith Act prohibiting willful advocacy of overthrow of government by force or violence, organization of any group for that purpose and conspiracy to violate such provisions were held not to violate the First Amendment or other provisions of the Bill of Rights.
Significance
The U.S. Supreme Court's review of this case provides a classic example of how the guarantees of the First Amendment must be balanced against the nation'sneed, as prescribed by Congress, to protect itself. The opinions written bythe justices contain memorable expressions of this paradox.
The Alien Registration Act of 1940, known as the Smith Act, made it a crime "to knowingly or willfully advocate, abet, advise, or teach the duty, necessity, desirability, or propriety of overthrowing or destroying any government inthe United States by force or violence." Publication or display of printed matter teaching or advocating overthrow of the government was forbidden, as was organizing any group that teaches, advocates, or encourages overthrow of government by force. Also against the law was "knowing" membership in any groupdedicated to that end.
In July of 1948, Eugene Dennis, general secretary of the Communist Party in the United States, and ten other party leaders were indicted for violating theSmith Act by conspiring to organize groups that taught the overthrow of thegovernment. In a sensational trial that lasted nine months and resulted in arecord 16,000 pages of testimony, the defendants argued that First Amendmentfreedom of speech protected them. Finding that the leaders of the Communist Party were unwilling to work within the framework of democracy but, rather, intended to initiate a violent revolution, the jury convicted them all.
"Clear and Present Danger"
They appealed. The U.S. Court of Appeals applied the "clear and present danger test" of free speech that was originated by Supreme Court Justice Oliver Wendell Holmes in Schenck v. United States (1919), when Holmes, writingthe opinion of the unanimous court, said:

The question in every case is whether the words used are used in such circumstances and are of sucha nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.

Upholding the convictions, the court of appeals applied a "sliding scale" rule for the clear and present danger test, saying it "must ask whether the gravity of the `evil,' discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger."
The U.S. Supreme Court agreed to review the case from the standpoint of whether the Smith Act "inherently or as construed and applied in the instant caseviolates the First Amendment and other provisions of the Bill of Rights." Without Justice Clark participating, the eight other justices showed wide disagreement over how to measure the Smith Act's restraints on the freedom of speech and association guaranteed by the First Amendment. Chief Justice Vinson, with Justices Burton, Minton, and Reed, found that:

Congress did not intend to eradicate the free discussion of political theories, to destroy the traditional rights of Americans to discuss and evaluate ideas without fearof governmental sanction [but] the formation of such a highly organized conspiracy, with rigidly disciplined members subject to call when the leaders felt that the time had come for action, coupled with the inflammable nature of world conditions, convince us that their convictions were justified . . . It is the existence of the conspiracy which creates the danger . . . If the ingredients of the reaction are present, we cannot bind the Government to wait until the catalyst is added. Petitioners intended to overthrow the government ofthe United States as speedily as the circumstances would permit. Their conspiracy . . . created a "clear and present danger" . . . They were properly andconstitutionally convicted for violation of the Smith Act.

"Beyond These Powers We Must Not Go"
Justice Frankfurter concurred, but wrote:

It is a sobering fact that in sustaining the convictions before us we can hardly escape restrictionon the interchange of ideas.

Congress, not the Supreme Court, hewrote, was responsible for reconciling such a conflict of values. The Court'sjob was to require substantial proof before conviction and to ensure fair procedures in enforcement of the law. "Beyond these powers," he wrote, "we mustnot go; we must scrupulously observe the narrow limits of judicial authority."
While also concurring, Justice Jackson wrote:

The authors of theclear and present danger test never applied it to a case like this, nor wouldI. As proposed here, it means that the Communist plotting is protected during its period of incubation; its preliminary stages of organization and preparation are immune from the law; the Government can move only after imminent action is manifest, when it would, of course, be too late.

Jacksonconcluded: "There is no constitutional right to gang up on the Government."
Dissenters Cite Prior Censorship
Justices Douglas and Black wrote dissenting opinions. Black stated:

The indictment is that they conspired to use speech or newspapers to teachand advocate the forcible overthrow of the Government. No matter how it is worded, this is a virulent form of prior censorship of speech and press, whichI believe the First Amendment forbids.

Douglas wrote:

We deal here with speech alone, not with speech plus acts of sabotage or unlawful conduct. Not a single seditious act ischarged. Free speech--the glory of our system of government--should not be sacrificed on anything less than plain and objective proof of danger that theevil advocated is imminent. On the record no one can say that petitioners andtheir converts are in such a strategic position as to have even the slightest chance of achieving their aims.

The majority opinion concluded that the Smith Act "does not violate the FirstAmendment or other provisions of the Bill of Rights." As a result, not onlydid Dennis and his fellow appellants serve time in prison, but 121 second-rank U.S. Communist Party officials were prosecuted for conspiracy under the Smith Act. Other individual party members also were prosecuted. In every case tried between 1951 and 1956, convictions were obtained. All were affirmed by courts of appeal. All were denied review by the Supreme Court.
Related Cases

• Abrams v. United States, 250 U.S. 616 (1919).
  
• Gitlow v. New York, 268 U.S. 652 (1925).
  
• Whitney v. California, 274 U.S. 357 (1927).
  
• DeJonge v. Oregon, 299 U.S. 353 (1937).
  
• Thornhill v. Alabama, 310 U.S. 88 (1940).
  
• Cantwell v. Connecticut, 310 U.S. 296 (1940).
  
• West Virginia Board of Education v. Barnette, 319 U.S. 624 (1943).
  
• American Communications Association v. Douds, 339 U.S. 382 (1950).