Question

1. What is the outcome of this case? (Guilty, not guilty, acquitted, etc.) (2-3 sentences)

2. What is the author's basis of dissent OR basis or support for upholding the opinion of the court? (1 full paragraph)

3. How does this judicial opinion (and general case) increase your understanding of what has been learned/discussed during this time period of the class and the events within it? Explain how this case is historically significant to what we have learned. (I full paragraph)

U.S. Supreme Court

Dennis v. United States, 341 U.S. 494 (1951)

Dennis v. United States

No. 336

Argued December 4, 1950

Decided June 4, 1951

341 U.S. 494

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.

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.

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. 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."

In this case, we are squarely presented with the application of the "clear and present

danger" test, and must decide what that phrase imports.

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, 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.

Likewise, we are in accord with the court below, 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

upheld.

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."

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

Answer 1

1. The case originated in 1948 when, together with several other high-ranking communists, Eugene Dennis, general secretary of the American Communist Party, was arrested and convicted of violating the Smith Act. In spite of the fact that there was no evidence that Dennis and his colleagues had encouraged any of their followers to commit specific violent acts, the conviction was upheld by lower courts and appealed to the Supreme Court, which agreed to hear the case.

2. Dissenting from the majority, the author who had developed a literal interpretation of the Bill of Rights and an absolutist position on First Amendment rights gave eloquent opinion both captured the tenor of the times and was a strong defense of freedom of speech. He could not agree that the First Amendment allows laws suppressing freedom of speech and of the press to be sustained on the basis of Congress or other notions of mere ' reasonability. ' Such a doctrine waters down the First Amendment so that it amounts to little more than a warning to Congress. However, there was hope that the Court will restore the freedoms of the First Amendment to the highly preferred place where they belong in a free society in calmer times after the cold war.

3

Although in the "substantial interest" of the government in protecting itself from violent overthrow, the decision contracts expression. While outright advocacy for violent overthrow poses the possibility of a "substantial public evil," the idea that vibrant democracies can tolerate such discussion and facilitate peaceful power transitions is based on the democratic notion of free speech.

The decision establishes within its jurisdiction a binding or persuasive precedent. At the time it was decided, Dennis, a 6-2 decision, was binding as the U.S. Supreme Court decisions are binding and mandatory on all U.S. jurisdictions. While Dennis may not have been explicitly overruled by the Supreme Court, several cases appear to conflict with its outcome and call it a good law.

In Yates v. U.S., the Court distinguished between actual action advocacy and mere belief and said some effort was needed to instigate overthrow. It said the Smith Act did not prohibit "advocacy as an abstract doctrine to forcefully overthrow the government."

In Brandenberg v. Ohio, the Court held that force advocacy is not punishable unless the advocacy "is likely to incite or bring about such action," while the Dennis decision de-emphasized the likelihood of any attempted forceful overthrow in the clear and present danger test