Dennis v. United States - 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 teach and 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, which I 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 is charged. Free speech--the glory of our system of government--should not be sacrificed on anything less than plain and objective proof of danger that the evil advocated is imminent. On the record no one can say that petitioners and their 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 First Amendment or other provisions of the Bill of Rights." As a result, not only did 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.