The federal government may limit free speech so long as the gravity of the evil, discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger.
In 1948, eleven Communist Party leaders were convicted of advocating the violent overthrow of the U.S. government and for the violation of several points of the Act. The party members who had been petitioning for socialist reforms claimed that the Act violated their First Amendment rights.
Did the Act violate the First Amendment?
No, the Act did not violate the First Amendment.
The First Amendment does not permit us to sustain laws suppressing freedom of speech and press on the basis of Congress’ or the Court’s 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 First Amendment as construed by the majority is not likely to protect any but those safe or othodox views which rarely need its protection.
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. This decision is akin to treating speech as the equivalent of overt acts of treasonable or seditious character.
The demands of free speech in a democratic society are better served by candid and informed weighing of competing interests, within the confines of the judicial process – rather than by announcing dogmas too inflexible for these issues to be resolved.
The “clear and present danger” test was incorrectly applied to the facts of this case.
The Court upheld the convictions of the Communist Party leaders and found that the Act did not inherently violate the First Amendment. The Court held that there was a distinction between the mere teaching of communist philosophies and active advocacy of those ideas. Such advocacy created a clear and present danger that threatened the government. Given the gravity of the consequences, the Court held that success or probability of success was not necessary to justify restrictions on the freedom of speech. The Communist Party is a highly disciplined organization, adept at infiltration, use of aliases, and double-meaning language; the Party is rigidly controlled; and Communists, unlike other political parties, tolerate no dissension.