Dennis v. U.S. Appeal: 1951

Justice Felix Frankfurter concurred, but wrote:

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

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

While also concurring, Justice Robert H. Jackson wrote:

The authors of the clear and present danger test never applied it to a case like this, nor would I. 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.

Concluded Jackson: "There is no constitutional right to gang up on the Government."