Case Brief: Dennis v. United States
Summary
The Alien Registration or Smith Act of 1940 (18 USC § 2385) makes it a criminal offense for anyone to advocate the overthrow of the United States Government.1 The leadership of the Community Party of the United States was indicted in Federal court for spreading Communist ideals, thereby advocating the end to the United States Government. In a 6-2 decision, the Supreme Court upheld the lower courts’ convictions, adapting the “clear and present danger” test. Both dissenting opinions questioned the validity of declaring the profession of an ideal different from teaching it in an academic setting.
Facts
Amid increasing pressure from the Republican Party to combat domestic Communism in addition to the Administration’s foreign policy toward the USSR, the Justice Department indicted the leadership of the Communist Part of the United States of America with violating provisions within the Smith Act.
Judge Harold Medina presided over the Federal District Court. The nine month long trial was characterized by questionable rulings on the admission and exclusion of evidence as well as dubious tactics used by both the defense and the prosecution. The trial concluded with the conviction of all eleven defendants.
The defense appealed to the Second Circuit Court of Appeals on the grounds of the questionable impartiality of both the judge and the jury, the informant witnesses used by the prosecution, on Medina’s conduct of the trial and the constitutionality of the Smith Act.
Issue
The Supreme Court granted certiorari only to the final appeal: the constitutionality of the Smith Act, specifically whether sections two or three violated the First Amendment and whether the same sections violated the First and Fifth Amendments due to indefiniteness.
"SEC. 2.(a) It shall be unlawful for any person -
"(1) 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, or by the assassination of any officer of any such government;
"(2) with intent to cause the overthrow or destruction of any government in the United States, to print, publish, edit, issue, circulate, sell, distribute, or publicly display any written or printed matter advocating, advising, or teaching the duty, necessity, desirability, or propriety of overthrowing or destroying any government in the United States by force or violence;
"(3) to organize or help to organize any society, group, or assembly of persons who teach, advocate, or encourage the overthrow or destruction of any government in the United States by force or violence; or to be or become a member of, or affiliate with, any such society, group, or assembly of persons, knowing the purposes thereof.
b) For the purposes of this section, the term `government in the United States' means the Government of the United States, the government of any State, Territory, or possession of the United States, the government of the District of Columbia, or the government of any political subdivision of any of them.
"SEC. 3. It shall be unlawful for any person to attempt to commit, or to conspire to commit, any of the acts prohibited by the provisions of this title."
Holding
In a majority opinion written by Chief Justice Vinson, the Court affirmed the lower courts’ rulings in a 6-2 decision3 through a development of the “grave and probable danger test”, an adaptation of the “clear and present danger test” created by Justice Holmes in Schenk v. United States. Chief Judge Learned Hand 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." (341 US 494, 1951) Reed, Burton and Minton joined Vinson on the Court’s opinion. Frankfurter and Jackson wrote concurrences. Black and Douglas each wrote dissents.
Rationale
Vinson states in his opinion “Certainly those who recruit and combine for the purpose of advocating overthrow intend to bring about that overthrow.” (Section I) The Smith Act serves to protect the existing government “not from change by peaceable, lawful and constitutional means, but from change by violence, revolution and terrorism.” Further, Vinson states the argument for rebellion against dictatorial governments is “without force” due to the “existing structure … for peaceful and orderly change.”
Vinson cites Justice Holmes’ opinion for Schenk 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.” “Obviously, [“clear and present danger”] 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. ... 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.” (Section III)
Black’s dissent noted the nature of the indictment of Dennis and the Party leaders. “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.”
Douglas’s dissent noted the disconnect between the opinion of the Court and the circumstances of the case itself. “The opinion of the Court does not outlaw these texts nor condemn them to the fire, as the Communists do literature offensive to their creed. But if the books themselves are not outlawed, if they can lawfully remain on library shelves, by what reasoning does their use in a classroom become a crime? It would not be a crime under the Act to introduce these books to a class, though that would be teaching what the creed of violent overthrow of the Government is. The Act, as construed, requires the element of intent - that those who teach the creed believe in it. The crime then depends not on what is taught but on who the teacher is. That is to make freedom of speech turn not on what is said, but on the intent with which it is said. Once we start down that road we enter territory dangerous to the liberties of every citizen. … That ruling is in my view not responsive to the issue in the case. We might as well say that the speech of petitioners is outlawed because Soviet Russia and her Red Army are a threat to world peace.”
1 US CODE: Title 18,2385. Advocating overthrow of Government. (2009, November 8). LII | Legal Information Institute at Cornell Law School. Retrieved February 16, 2010, from http://www.law.cornell.edu/uscode/18/2385.html