Supreme Court decision
By: Fred M. Vinson, Hugo L. Black
Date: June 4, 1951
Source: Vinson, Fred M. and Hugo L. Black Dennis v. United States, 341 U.S. 494 (1951). Available online at http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?navby=case... ; website home page: http://www.findlaw.com (accessed February 21, 2003).
About the Authors: Fred M. Vinson (1890–1953) worked his way through law school and was an eight-term congressman, serving on numerous congressional committees, including the Ways and Means Committee. He also served on the U.S. Court of Appeals for the District of Columbia and headed the Office of War Mobilization. He was chief justice of the Supreme Court from 1946 until his death. Hugo L. Black (1886–1971) was appointed to the Supreme Court in 1937, after serving two terms as a U.S. senator from Alabama. He was nominated to the Court by President Franklin D. Roosevelt (served 1933–1945). Black served on the Supreme Court for thirty-four years, retiring one week before his death. His tenure was generally distinguished by his support of civil rights.
The United States has long been concerned with radical organizations seeking to undermine or overthrow the government. In the years before World War I (1914–1918), much effort went into ridding the country of anarchists and others who were perceived as a threat to the government. During World War I, many of those arrested under a number of wartime laws were radicals. After the success of the 1917 Russian Revolution, anticommunist sentiment grew in the United States, and efforts were made—some partially successful—to deport large numbers of radicals. The post-World War I "Red Scare" revolved around many Americans' fear that the country was being overrun by communists. In the 1920s, immigration restrictions were passed to keep communists and other radicals out of the country.
Communist hysteria abated somewhat during the 1930s, as the United States coped with the Great Depression. During World War II (1939–1945), with the United States allied with Communist Russia, the level of anticommunist rhetoric in Washington was necessarily toned down. But the fear hadn't gone away. In 1940, the government passed the Smith Act, making it a crime to teach or advocate the forcible overthrow of the government. But questions remained as to what types of speech could be criminalized. The Supreme Court maintained its World War I standard, requiring a "clear and present danger" before any speech could be banned. But as the 1940s progressed, the lower courts expanded their views on what presented a "danger" to the country, encompassing an increasing number of different types of speech. With the rise of the Cold War, communism became publicly feared again, and in 1948 eleven (some sources say twelve) U.S. Communist Party leaders were arrested under the Smith Act. Eugene Dennis, the general secretary of the U.S. Communist Party, was among the leaders arrested. They were convicted in 1949. Dennis v. U.S. was one of only a few cases that made it on appeal to the Supreme Court in 1951.
In Dennis v. U.S., the important question before the court was whether the Smith Act violated the First Amendment and other provisions of the Bill of Rights. In dispute was whether the act could ban speech that merely suggested a need to get rid of the government or if, under the First Amendment, speech could only be banned when it advocated an act that would cause the overthrow of the government. If speech could be banned for suggesting an idea, then, in effect, all Communist Party leaders were criminals under the Smith Act.
The majority opinion of the Supreme Court upheld the Smith Act, determining that language could be criminalized if, in the minds of the government and the jury, it constituted a "clear and present danger." The two dissenters, Justices Hugo Black and William Orville Douglas, pointed out that there had been no known attempt to overthrow the government, nor had there been any planning for such an attempt. What had been uncovered, though, was the use of speech advocating the overthrow of the government. Black and Douglas maintained that a conviction based on speech alone was a limitation of the First Amendment. Their opinion was not shared by the rest of the Court—or by most of the country, for that matter. At the time, the United States was in the middle of its second Red Scare, as Joseph McCarthy, U.S. senator from Wisconsin, whipped the nation into a frenzy with charges that he knew of communists in the government. McCarthy's claims were wholly unsubstantiated, but amid the communist hysteria and fears of being labeled communists themselves, very few people dared dispute his assertions.
In 1957, as the McCarthy era came to an end, the Supreme Court ruled on the Yates v. U.S. case, holding that if someone advocates an idea, even the idea that the U.S. government needs to be overthrown, that alone is not illegal. It is only when it becomes advocacy of a specific illegal act, such as taking over a federal building, that such speech becomes illegal. The Yates ruling overturned the convictions of several lower-level communist officials. Significantly, prosecutions under the Smith Act almost ceased after the decision. Free speech was further expanded in 1969, when the Supreme Court held that only advocacy aimed at "inciting or producing imminent lawless action" that was likely to succeed could be banned. This was the widest definition of political free speech to date and, for the most part, the one still used in the early twenty-first century.
Primary Source: Dennis v. U.S. [excerpt]
SYNOPSIS: In this excerpt, Chief Justice Fred Vinson argues that the purpose of the Smith Act is to protect the government against revolution and that it is aimed "at advocacy, not discussion." Vinson admits that speech is involved but holds that speech, though protected by the First Amendment, may be restricted when it presents "a clear and present danger." Justice Hugo Black dissents, arguing that those convicted were not indicted for advocating the government's overthrow, and that the right to free speech must prevail in this case.
Mr. Chief Justice Vinson announced the judgment of the Court and an opinion in which Mr. Justice Reed, Mr. Justice Burton, and Mr. Justice Minton join.…
The obvious purpose of the statute is to protect existing Government, not from change by peaceable, lawful and constitutional means, but from change by violence, revolution and terrorism. That it is within the power of the Congress to protect the Government of the United States from armed rebellion is a proposition which requires little discussion. Whatever theoretical merit there may be to the argument that there is a "right" to rebellion against dictatorial governments is without force where the existing structure of the government provides for peaceful and orderly change. We reject any principle of governmental helplessness in the face of preparation for revolution, which principle, carried to its logical conclusion, must lead to anarchy. No one could conceive that it is not within the power of Congress to prohibit acts intended to overthrow the Government by force and violence. The question with which we are concerned here is not whether Congress has such power, but whether the means which it has employed conflict with the First and Fifth Amendments to the Constitution.…
The very language of the Smith Act negates the interpretation which petitioners would have us impose on that Act. It is directed at advocacy, not discussion.… 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. Rather Congress was concerned with the very kind of activity in which the evidence showed these petitioners engaged.
But although the statute is not directed at the hypothetical cases which petitioners have conjured, its application in this case has resulted in convictions for the teaching and advocacy of the overthrow of the Government by force and violence, which, even though coupled with the intent to accomplish that overthrow, contains an element of speech. For this reason, we must pay special heed to the demands of the First Amendment marking out the boundaries of speech.
We pointed out in Douds … that the basis of the First Amendment is the hypothesis that speech can rebut speech, propaganda will answer propaganda, free debate of ideas will result in the wisest governmental policies. It is for this reason that this Court has recognized the inherent value of freediscourse. An analysis of the leading cases in this Court which have involved direct limitations on speech, however, will demonstrate that both the majority of the Court and the dissenters in particular cases have recognized that this is not an unlimited, unqualified right, but that the societal value of speech must, on occasion, be subordinated to other values and considerations.
No important case involving free speech was decided by this Court prior to Schenck v. United States.… Writing for a unanimous Court, Justice Holmes stated that 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." … The fact is inescapable, too, that the phrase bore no connotation that the danger was to be any threat to the safety of the Republic. The charge was causing and attempting to cause insubordination in the military forces and obstruct recruiting. The objectionable document denounced conscription and its most inciting sentence was, "You must do your share to maintain, support and uphold the rights of the people of this country." … Fifteen thousand copies were printed and some circulated. This insubstantial gesture toward insubordination in 1917 during war was held to be a clear and present danger of bringing about the evil of military insubordination.…
And in American Communications Assn. v. Douds, … we suggested that the Holmes-Brandeis philosophy insisted that where … there was a direct restriction upon speech, a "clear and present danger" that the substantive evil would be caused was necessary before the statute in question could be constitutionally applied. And we stated, "[The First] Amendment requires that one be permitted to believe what he will. It requires that one be permitted to advocate what he will unless there is a clear and present danger that a substantial public evil will result therefrom." … But we further suggested that neither Justice Holmes nor Justice Brandeis ever envisioned that a shorthand phrase should be crystallized into a rigid rule to be applied inflexibly without regard to the circumstances of each case. Speech is not an absolute, above and beyond control by the legislature when its judgment, subject to review here, is that certain kinds of speech are so undesirable as to warrant criminal sanction. Nothing is more certain in modern society than the principle that there are no absolutes, that a name, a phrase, a standard has meaning only when associated with the considerations which gave birth to the nomenclature.… To those who would paralyze our Government in the face of impending threat by encasing it in a semantic strait-jacket we must reply that all concepts are relative.
In this case we are squarely presented with the application of the "clear and present danger" test, and must decide what that phrase imports. We first note that many of the cases in which this Court has reversed convictions by use of this or similar tests have been based on the fact that the interest which the State was attempting to protect was itself too insubstantial to warrant restriction of speech.… Overthrow of the Government by force and violence is certainly a substantial enough interest for the Government to limit speech. Indeed, this is the ultimate value of any society, for if a society cannot protect its very structure from armed internal attack, it must follow that no subordinate value can be protected. If, then, this interest may be protected, the literal problem which is presented is what has been meant by the use of the phrase "clear and present danger" of the utterances bringing about the evil within the power of Congress to punish.
Obviously, the words cannot mean that before the Government may act, it must wait until the putsch is about to be executed, the plans have been laid and the signal is awaited. If Government is aware that a group aiming at its overthrow is attempting to indoctrinate its members and to commit them to a course whereby they will strike when the leaders feel the circumstances permit, action by the Government is required. The argument that there is no need for Government to concern itself, for Government is strong, it possesses ample powers to put down a rebellion, it may defeat the revolution with ease needs no answer. For that is not the question. Certainly an attempt to overthrow the Government by force, even though doomed from the outset because of inadequate numbers of power of the revolutionists, is a sufficient evil for Congress to prevent. The damage which such attempts create both physically and politically to a nation makes it impossible to measure the validity in terms of the probability of success, or the immediacy of a successful attempt.… We must therefore reject the contention that success or probability of success is the criterion.
The situation with which Justices Holmes and Brandeis were concerned in Gitlow was a comparatively isolated event, bearing little relation in their minds to any substantial threat to the safety of the community.… They were not confronted with any situation comparable to the instant one—the development of an apparatus designed and dedicated to the overthrow of the Government, in the context of world crisis after crisis.
Chief Judge Learned Hand, writing for the majority below, interpreted the phrase as follows: "In each case [courts] 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." … We adopt this statement of the rule. As articulated by Chief Judge Hand, it is as succinct and inclusive as any other we might devise at this time. It takes into consideration those factors which we deem relevant, and relates their significances. More we cannot expect from words.
… If the ingredients of the reaction are present, we cannot bind the Government to wait until the catalyst is added.…
… The judgments of conviction are
Mr. Justice Black, dissenting.…
At the outset I want to emphasize what the crime involved in this case is, and what it is not. These petitioners were not charged with an attempt to overthrow the Government. They were not charged with overt acts of any kind designed to overthrow the Government. They were not even charged with saying anything or writing anything designed to overthrow the Government. The charge was that they agreed to assemble and to talk and publish certain ideas at a later date: The indictment is that they conspired to organize the Communist Party and to use speech or newspapers and other publications in the future 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. I would hold 3 of the Smith Act, authorizing this prior restraint unconstitutional on its face and as applied.
But let us assume, contrary to all constitutional ideas of fair criminal procedure, that petitioners although not indicted for the crime of actual advocacy, may be punished for it. Even on this radical assumption, the other opinions in this case show that the only way to affirm these convictions is to repudiate directly or indirectly the established "clear and present danger" rule. This the Court does in a way which greatly restricts the protections afforded by the First Amendment. The opinions for affirmance indicate that the chief reason for jettisoning the rule is the expressed fear that advocacy of Communist doctrine endangers the safety of the Republic. Undoubtedly, a governmental policy of unfettered communication of ideas does entail dangers. To the Founders of this Nation, however, the benefits derived from free expression were worth the risk. They embodied this philosophy in the First Amendment's command that "Congress shall make no law … abridging the freedom of speech, or of the press.…" I have always believed that the First Amendment is the keystone of our Government, that the freedoms it guarantees provide the best insurance against destruction of all freedom. At least as to speech in the realm of public matters, I believe that the "clear and present danger" test does not "mark the furthermost constitutional boundaries of protected expression" but does "no more than recognize a minimum compulsion of the Bill of Rights.…"
Public opinion being what it now is, few will protest the conviction of these Communist petitioners. There is hope, however, that in calmer times, when present pressures, passions and fears subside, this or some later Court will restore the First Amendment liberties to the high preferred place where they belong in a free society.
Boxly, George T. The Twelve: A Lawyer Looks at the Case. New York: New Century, 1949.
Dennis, Eugene. Letters From Prison. New York: International, 1956.
Palmer, Jan. The Vinson Court Era: The Supreme Court's Conference Votes—Data and Analysis. New York: AMS, 1990.
St. Clair, James E., and Linda C. Gugin. Chief Justice Fred M. Vinson of Kentucky: A Political Biography. Lexington, Ky.: University Press of Kentucky, 2002.
Urofsky, Melvin I. Division and Discord: The Supreme Court Under Stone and Vinson, 1941–1953. Columbia, S.C.: University of South Carolina Press, 1997.