What was the historical context of the Dennis case? What is the difference, if any, between “conspiracy to advocate overthrowing the government” and “conspiring to overthrow the government”? Do you think that Dennis’ speech constituted a “clear and present danger” as understood by Justices Holmes and Brandeis? What is the “clear and probable” danger test? How did Justice Vinson modify the clear and present danger test? Why did Justice Black consider this a case of “prior restraint”? How does Justice Douglas’ characterization of the facts and circumstances in the case differ from that of the majority? What standard or test would Douglas have used? Explain Justice Douglas’ statement that “free speech has occupied an exalted position because of the high service it has given our society.”
Compare Vinson’s clear and probable danger test to Holmes’ and Brandeis’ clear and present danger test in Abrams and Whitney. Compare Justice Frankfurter’s use of the self-restraintist balancing test in Dennis to Justice Sanford’s use of it in Gitlow v. New York.
Introduction
Eugene Dennis was the general secretary of the Communist Party of the United States (CPSUSA). He and other CPUSA leaders were convicted by a federal court under the Smith Act (1940), which made it unlawful “to knowingly or willfully advocate, abet, advise, or teach the duty, desirability, or propriety of overthrowing or destroying any government in the United States by force or violence, or by the assassination of any officer of such government.” This highly publicized and lengthy trial took place at the height of the Red Scare, during the Cold War rivalry between the Soviet Union and the United States. China had fallen to the Communists two years earlier, and the Korean War was still raging. In February 1950, Senator Joseph McCarthy (1908–1957) of Wisconsin made his accusation about communist infiltration of the U.S. government. In response to fear of communist subversion, the federal government enacted a series of repressive measures, including loyalty programs and the McCarran Internal Security Act (1950), a law that mandated the registration of communist organizations with the attorney general. The government investigated more than 4.5 million public employees for communist activity, sympathies, and past affiliations.
Dennis and the other defendants were tried on the confusing charge of “conspiring to advocate the overthrow of government,” as opposed to “conspiring to overthrow the government.” The Court’s 6–2 decision included five different opinions, three of which are excerpted below. Chief Justice Fred M. Vinson (1890–1953) argued that the case hinged upon the meaning of the “clear and present danger” test. Borrowing from Justice Learned Hand’s formulation, however, he modified the test as “clear and probable danger.” The phrase “discounted by its improbability” is further puzzling. On its face, it suggests that the less probable the evil, the less urgency for restricting speech and, vice versa, the more probable the evil, the greater the urgency for restriction. However, a closer look at Vinson’s opinion suggests that he did not adhere to this interpretation, as when he stated: “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.” Unlike Holmes’ version of the “clear and present danger” test, which emphasizes the circumstances and context of an “immediate” or “imminent” evil as the deciding factor in restricting speech, Vinson’s application of “the clear and probable danger” test suggests that speech may be restricted regardless of the probability of the evil occurring. Thus, as used by Vinson in Dennis, the “clear and probable danger” test falls somewhere between the more protective “clear and present danger” test and the more restrictive “bad tendency test” (Dennis v. United States). Dennis is further noteworthy in providing a diverse spectrum of judicial opinions and standards on the First Amendment. Justice Frankfurter’s concurring opinion presents a textbook example of the ad hoc self-restraintist balancing test. In their dissenting opinions, Justice Douglas and Black defended the preferred position of the First Amendment while also offering some enduring insights about the fate of liberty in times of panic. They poignantly warned about the perennial temptation of overreaction and of trading essential liberty for temporary safety.
—Joseph R. Fornieri
Source: 341 U.S. 494, https://www.law.cornell.edu/supremecourt/text/341/494.
- 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 indictment charged the petitioners with willfully and knowingly conspiring (1) to organize as the Communist Party of the United States of America a society, group, and assembly of persons who teach and advocate the overthrow and destruction of the government of the United States by force and violence, and (2) knowingly and willfully to advocate and teach the duty and necessity of overthrowing and destroying the government of the United States by force and violence. The indictment further alleged that § 2 of the Smith Act proscribes these acts and that any conspiracy to take such action is a violation of § 3 of the act. . . .
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.
One of the bases for the contention that the means which Congress has employed are invalid takes the form of an attack on the face of the statute on the grounds that, by its terms, it prohibits academic discussion of the merits of Marxism-Leninism, that it stifles ideas and is contrary to all concepts of a free speech and a free press. Although we do not agree that the language itself has that significance, we must bear in mind that it is the duty of the federal courts to interpret federal legislation in a manner not inconsistent with the demands of the Constitution (American Communications Association v. Douds, 1950). . . .
The very language of the Smith Act negates the interpretation which petitioners[1] would have us impose on that act. It is directed at advocacy, not discussion. Thus, the trial judge properly charged the jury that they could not convict if they found that petitioners did “no more than pursue peaceful studies and discussions or teaching and advocacy in the realm of ideas.” He further charged that it was not unlawful “to conduct in an American college or university a course explaining the philosophical theories set forth in the books which have been placed in evidence.”
Such a charge is in strict accord with the statutory language and illustrates the meaning to be placed on those words. 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. . . .
[In a passage omitted here, Justice Vinson interpreted the Supreme Court’s precedents on the First Amendment including many of the cases found in this volume such as Schenck v. United States, Gitlow v. New York, and Whitney v. California.]
In this case, we are squarely presented with the application of the “clear and present danger” test and must decide what that phrase imports. . . . 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 or 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. In the instant case, the trial judge charged the jury that they could not convict unless they found that petitioners intended to overthrow the government “as speedily as circumstances would permit.” This does not mean, and could not properly mean, that they would not strike until there was certainty of success. What was meant was that the revolutionists would strike when they thought the time was ripe. We must therefore reject the contention that success or probability of success is the criterion. . . .
Chief Judge Learned Hand . . . interpreted the [clear and present danger] 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.
Likewise, we are in accord with the court below,[2] which affirmed the trial court’s finding that the requisite danger existed. The mere fact that, from the period 1945 to 1948, petitioners’ activities did not result in an attempt to overthrow the government by force and violence is, of course, no answer to the fact that there was a group that was ready to make the attempt. The formation by petitioners of such a highly organized conspiracy, with rigidly disciplined members subject to call when the leaders, these petitioners, felt that the time had come for action, coupled with the inflammable nature of world conditions, similar uprisings in other countries, and the touch-and-go nature of our relations with countries with whom petitioners were in the very least ideologically attuned, convince us that their convictions were justified on this score. And this analysis disposes of the contention that a conspiracy to advocate, as distinguished from the advocacy itself, cannot be constitutionally restrained, because it comprises only the preparation. 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. . . .
We hold that §§ 2(a)(1), 2(a)(3) and 3 of the Smith Act do not inherently, or as construed or applied in the instant case, violate the First Amendment and other provisions of the Bill of Rights, or the First and Fifth Amendments because of indefiniteness. Petitioners intended to overthrow the government of the United States as speedily as the circumstances would permit. Their conspiracy to organize the Communist Party and to teach and advocate the overthrow of the government of the United States by force and violence created a “clear and present danger” of an attempt to overthrow the government by force and violence. They were properly and constitutionally convicted for violation of the Smith Act. The judgments of conviction are
Affirmed.
- JUSTICE FRANKFURTER, concurring in affirmance of the judgment.
. . . This brings us to the ultimate issue. In enacting a statute which makes it a crime for the defendants to conspire to do what they have been found to have conspired to do, did Congress exceed its constitutional power?
Few questions of comparable import have come before this Court in recent years. The appellants[3] maintain that they have a right to advocate a political theory, so long, at least, as their advocacy does not create an immediate danger of obvious magnitude to the very existence of our present scheme of society. On the other hand, the government asserts the right to safeguard the security of the nation by such a measure as the Smith Act. Our judgment is thus solicited on a conflict of interests of the utmost concern to the wellbeing of the country. This conflict of interests cannot be resolved by a dogmatic preference for one or the other, nor by a sonorous formula which is, in fact, only a euphemistic disguise for an unresolved conflict. If adjudication is to be a rational process, we cannot escape a candid examination of the conflicting claims with full recognition that both are supported by weighty title-deeds. . . .
But how are competing interests to be assessed? Since they are not subject to quantitative ascertainment, the issue necessarily resolves itself into asking, who is to make the adjustment?—who is to balance the relevant factors and ascertain which interest is in the circumstances to prevail? Full responsibility for the choice cannot be given to the courts. Courts are not representative bodies. They are not designed to be a good reflex of a democratic society. Their judgment is best informed, and therefore most dependable, within narrow limits. Their essential quality is detachment, founded on independence. History teaches that the independence of the judiciary is jeopardized when courts become embroiled in the passions of the day and assume primary responsibility in choosing between competing political, economic, and social pressures.
Primary responsibility for adjusting the interests which compete in the situation before us of necessity belongs to the Congress. The nature of the power to be exercised by this Court has been delineated in decisions not charged with the emotional appeal of situations such as that now before us. We are to set aside the judgment of those whose duty it is to legislate only if there is no reasonable basis for it. . . .
These general considerations underlie decision of the case before us.
On the one hand is the interest in security. The Communist Party was not designed by these defendants as an ordinary political party. For the circumstances of its organization, its aims, and methods, and the relation of the defendants to its organization and aims, we are concluded by the jury’s verdict. The jury found that the party rejects the basic premise of our political system—that change is to be brought about by nonviolent constitutional process. The jury found that the party advocates the theory that there is a duty and necessity to overthrow the government by force and violence. It found that the party entertains and promotes this view not as a prophetic insight or as a bit of unworldly speculation, but as a program for winning adherents and as a policy to be translated into action. . . .
On the other hand is the interest in free speech. The right to exert all governmental powers in aid of maintaining our institutions and resisting their physical overthrow does not include intolerance of opinions and speech that cannot do harm although opposed and perhaps alien to dominant, traditional opinion. The treatment of its minorities, especially their legal position, is among the most searching tests of the level of civilization attained by a society. It is better for those who have almost unlimited power of government in their hands to err on the side of freedom. We have enjoyed so much freedom for so long that we are perhaps in danger of forgetting how much blood it cost to establish the Bill of Rights.
Of course, no government can recognize a “right” of revolution, or a “right” to incite revolution if the incitement has no other purpose or effect. But speech is seldom restricted to a single purpose, and its effects may be manifold. A public interest is not wanting in granting freedom to speak their minds even to those who advocate the overthrow of the government by force. For, as the evidence in this case abundantly illustrates, coupled with such advocacy is criticism of defects in our society. Criticism is the spur to reform, and Burke’s admonition that a healthy society must reform in order to conserve has not lost its force. Astute observers have remarked that one of the characteristics of the American republic is indifference to fundamental criticism. It is a commonplace that there may be a grain of truth in the most uncouth doctrine, however false and repellent the balance may be. Suppressing advocates of overthrow inevitably will also silence critics who do not advocate overthrow but fear that their criticism may be so construed. No matter how clear we may be that the defendants now before us are preparing to overthrow our government at the propitious moment, it is self-delusion to think that we can punish them for their advocacy without adding to the risks run by loyal citizens who honestly believe in some of the reforms these defendants advance. It is a sobering fact that, in sustaining the convictions before us, we can hardly escape restriction on the interchange of ideas.
We must not overlook the value of that interchange. Freedom of expression is the wellspring of our civilization—the civilization we seek to maintain and further by recognizing the right of Congress to put some limitation upon expression. Such are the paradoxes of life. For social development of trial and error, the fullest possible opportunity for the free play of the human mind is an indispensable prerequisite. The history of civilization is in considerable measure the displacement of error which once held sway as official truth by beliefs which in turn have yielded to other truths. Therefore, the liberty of man to search for truth ought not to be fettered, no matter what orthodoxies he may challenge. Liberty of thought soon shrivels without freedom of expression. Nor can truth be pursued in an atmosphere hostile to the endeavor or under dangers which are hazarded only by heroes.
The interest which [the First Amendment] guards, and which gives it its importance, presupposes that there are no orthodoxies—religious, political, economic, or scientific—which are immune from debate and dispute. Back of that is the assumption—itself an orthodoxy, and the one permissible exception—that truth will be most likely to emerge if no limitations are imposed upon utterances that can with any plausibility be regarded as efforts to present grounds for accepting or rejecting propositions whose truth the utterer asserts, or denies (International Brotherhood of Electrical Workers v. Labor Board).
In the last analysis, it is on the validity of this faith that our national security is staked.
It is not for us to decide how we would adjust the clash of interests which this case presents were the primary responsibility for reconciling it ours. Congress has determined that the danger created by advocacy of overthrow justifies the ensuing restriction on freedom of speech. The determination was made after due deliberation, and the seriousness of the congressional purpose is attested by the volume of legislation passed to effectuate the same ends. . . .
The wisdom of the assumptions underlying the legislation and prosecution is another matter. In finding that Congress has acted within its power, a judge does not remotely imply that he favors the implications that lie beneath the legal issues. Considerations there enter which go beyond the narrow confines of their legitimate authority. . . .
JUSTICE BLACK, dissenting.
Here again . . . my basic disagreement with the Court is not as to how we should explain or reconcile what was said in prior decisions, but springs from a fundamental difference in constitutional approach. Consequently, it would serve no useful purpose to state my position at length.
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. . . .
. . . 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” (Bridges v. California).
So long as this Court exercises the power of judicial review of legislation, I cannot agree that the First Amendment permits us to sustain laws suppressing freedom of speech and press on the basis of Congress’ or our own notions of mere “reasonableness.” Such a doctrine waters down the First Amendment so that it amounts to little more than an admonition to Congress. The amendment as so construed is not likely to protect any but those “safe” or orthodox views which rarely need its protection. . . .
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.
JUSTICE DOUGLAS, dissenting.
. . . Free speech has occupied an exalted position because of the high service it has given our society. Its protection is essential to the very existence of a democracy. The airing of ideas releases pressures which otherwise might become destructive. When ideas compete in the market for acceptance, full and free discussion exposes the false, and they gain few adherents. Full and free discussion even of ideas we hate encourages the testing of our own prejudices and preconceptions. Full and free discussion keeps a society from becoming stagnant and unprepared for the stresses and strains that work to tear all civilizations apart.
Full and free discussion has indeed been the first article of our faith. We have founded our political system on it. It has been the safeguard of every religious, political, philosophical, economic, and racial group amongst us. We have counted on it to keep us from embracing what is cheap and false; we have trusted the common sense of our people to choose the doctrine true to our genius and to reject the rest. This has been the one single outstanding tenet that has made our institutions the symbol of freedom and equality. We have deemed it more costly to liberty to suppress a despised minority than to let them vent their spleen. We have above all else feared the political censor. We have wanted a land where our people can be exposed to all the diverse creeds and cultures of the world.
There comes a time when even speech loses its constitutional immunity. Speech innocuous one year may at another time fan such destructive flames that it must be halted in the interests of the safety of the Republic. That is the meaning of the clear and present danger test. When conditions are so critical that there will be no time to avoid the evil that the speech threatens, it is time to call a halt. Otherwise, free speech which is the strength of the nation will be the cause of its destruction.
Yet free speech is the rule, not the exception. The restraint to be constitutional must be based on more than fear, on more than passionate opposition against the speech, on more than a revolted dislike for its contents. There must be some immediate injury to society that is likely if speech is allowed. The classic statement of these conditions was made by Mr. Justice Brandeis in his concurring opinion in Whitney v. California.[4]. . .
The nature of communism as a force on the world scene would, of course, be relevant to the issue of clear and present danger of petitioners’ advocacy within the United States. But the primary consideration is the strength and tactical position of petitioners and their converts in this country. On that, there is no evidence in the record. If we are to take judicial notice of the threat of Communists within the nation, it should not be difficult to conclude that, as a political party, they are of little consequence. Communists in this country have never made a respectable or serious showing in any election. I would doubt that there is a village, let alone a city or county or state, which the Communists could carry. Communism in the world scene is no bogeyman; but communism as a political faction or party in this country plainly is. Communism has been so thoroughly exposed in this country that it has been crippled as a political force. Free speech has destroyed it as an effective political party. It is inconceivable that those who went up and down this country preaching the doctrine of revolution which petitioners espouse would have any success. In days of trouble and confusion, when bread lines were long, when the unemployed walked the streets, when people were starving, the advocates of a short-cut by revolution might have a chance to gain adherents. But today there are no such conditions. The country is not in despair; the people know Soviet communism; the doctrine of Soviet revolution is exposed in all of its ugliness, and the American people want none of it.
How it can be said that there is a clear and present danger that this advocacy will succeed is, therefore, a mystery. Some nations less resilient than the United States, where illiteracy is high and where democratic traditions are only budding, might have to take drastic steps and jail these men for merely speaking their creed. But in America, they are miserable merchants of unwanted ideas; their wares remain unsold. The fact that their ideas are abhorrent does not make them powerful. . . .
. . . 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 this 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 First Amendment provides that “Congress shall make no law . . . abridging the freedom of speech.” The Constitution provides no exception. This does not mean, however, that the nation need hold its hand until it is in such weakened condition that there is no time to protect itself from incitement to revolution. Seditious conduct can always be punished. But the command of the First Amendment is so clear that we should not allow Congress to call a halt to free speech except in the extreme case of peril from the speech itself. The First Amendment makes confidence in the common sense of our people and in their maturity of judgment the great postulate of our democracy. Its philosophy is that violence is rarely, if ever, stopped by denying civil liberties to those advocating resort to force. The First Amendment reflects the philosophy of Jefferson “that it is time enough for the rightful purposes of civil government for its officers to interfere when principles break out into overt acts against peace and good order.”[5] The political censor has no place in our public debates. Unless and until extreme and necessitous circumstances are shown, our aim should be to keep speech unfettered and to allow the processes of law to be invoked only when the provocateurs among us move from speech to action.
Vishinsky wrote in 1938 in The Law of the Soviet State, “In our state, naturally, there is and can be no place for freedom of speech, press, and so on for the foes of socialism.”
Our concern should be that we accept no such standard for the United States. Our faith should be that our people will never give support to these advocates of revolution, so long as we remain loyal to the purposes for which our nation was founded.
Footnotes
- 1. A petitioner is someone, in this case Eugene Dennis, who makes a formal application to a court for a writ, judicial action in a suit, etc.
- 2. The court “below” the Supreme Court whose decision was appealed to the Supreme Court.
- 3. A person who applies to a higher court to reverse the decision of a lower court.
- 4. Whitney v. California.
- 5. Thomas Jefferson, A Bill for Establishing Religious Freedom, June 18, 1779, https://teachingamericanhistory.org/library/document/a-bill-for-establishing-religious-freedom/.
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