Dennis v. U.S. Appeal: 1951

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Dennis v. U.S. Appeal: 1951

Appellants: Benjamin Davis, Eugene Dennis, John Gates, Gil Green, Gus Hall, Irving Potash, Jack Stachel, Robert Thompson, John Williamson, Henry Winston, and Carl Winter
Defendant: United States
Appellants Claims: That the Smith Act, under which appellants were found guilty, violates the First Amendment and other provisions of the Bill of Rights of the U.S. Constitution
Chief Defense Lawyers: Philip B. Perlman and Irving S. Shapiro
Chief Lawyers for Appellants: George W. Crockett, Jr., Abraham J. Isserman, and Harry Sacher
Justices: Hugo L. Black, Harold H. Burton, William 0. Douglas, Felix Frankfurter, Robert H. Jackson, Sherman Minton; Stanley F. Reed, and Fred M. Vinson, (Tom C. Clark not participating)
Place: Washington, D.C.
Date of Decision: June 4, 1951
Decision: Provisions of the Smith Act prohibiting willful advocacy of overthrow of government by force or violence, organization of any group for that purpose and conspiracy to violate such provisions were held not to violate the First Amendment or other provisions of the Bill of Rights in a 6-2 decision.

SIGNIFICANCE: The U.S. Supreme Court's review of this case provides a classic example of how the guarantees of the First Amendment must be balanced against the nation's need, as prescribed by Congress, to protect itself. The opinions written by the justices contain memorable expressions of this paradox.

The Alien Registration Act of 1940, known as the Smith Act, made it a crime "to knowingly or willfully advocate, abet, advise, or teach the duty, necessity, desirability, or propriety of overthrowing or destroying any government in the United States by force or violence." Publication or display of printed matter teaching or advocating overthrow of the government was forbidden, as was organizing any group that teaches, advocates, or encourages overthrow of government by force. Also against the law was "knowing" membership in any group dedicated to that end.

In July 1948, Eugene Dennis, general secretary of the Communist Party in the United States, and 10 other party leaders were indicted for violating the Smith Act by conspiring to organize groups that taught the overthrow of the government. In a sensational trial that lasted nine months and resulted in a record 16,000 pages of testimony, the defendants argued that First Amendment freedom of speech protected them. Finding that the leaders of the Communist Party were unwilling to work within the framework of democracy but, rather, intended to initiate a violent revolution, the jury convicted them all.

"Clear and Present Danger"

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.

"Beyond These Powers We Must Not Go"

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."

Dissenters Cite Prior Censorship

Justices William 0. Douglas and Hugo L. Black wrote dissenting opinions. Said Black:

The indictment is that they conspired to use speech or newspapers 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.

Douglas wrote:

We deal here with speech alone, not with speech plus acts of sabotage or unlawful conduct. Not a single seditious act is charged.
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 the 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 majority opinion concluded that the Smith Act "does not violate the First Amendment or other provisions of the Bill of Rights." As a result, not only did Dennis and his fellow appellants serve time in prison, but 121 second-rank U.S. Communist Party officials were prosecuted for conspiracy under the Smith Act. Other individual party members also were prosecuted. In every case tried between 1951 and 1956, convictions were obtained. All were affirmed by courts of appeal. All were denied review by the Supreme Court.

—Bernard Ryan, Jr.