Dennis v. U.S. Appeal: 1951

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. U.S. (see separate entry) in 1919, when Holmes, writing the opinion of the unanimous court, said:

The question in every case is whether the words used are used in such circumstances and are of such a 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 case violates the First Amendment and other provisions of the Bill of Rights."

Without Justice Tom C. 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 Fred M. Vinson, with Justices Harold H. Burton, Sherman Minton, and Stanley F. 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 fear of 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 of the United States as speedily as the circumstances would permit. Their conspiracy … created a "clear and present danger." … They were properly and constitutionally convicted for violation of the Smith Act.