Brief Fact Summary. The Petitioners, Dennis and others (Petitioners) were convicted for (1) willfully and knowingly conspiring to organize as the Communist Party of the United States, a group whose members advocated the overthrow of the United States government by force and (2) willfully and knowingly advocating and teaching the duty to do the same. The constitutionality of the statute under which the Petitioners were convicted was challenged.
Synopsis of Rule of Law. For an impediment on free expression to be permissible, the gravity of the evil, discounted by its improbability of coming about, must sufficiently outweigh the invasion of free speech necessary to avoid the danger.
Held. No. The Court of Appeals is affirmed.
Chief Justice Fred Vinson (J. Vinson) We must apply the “clear and present danger” test. Accordingly, we note that the overthrow of the Government by force is certainly a substantial enough interest for the Government to limit speech. Obviously, “clear and present danger” does not mean the government may not act until the Putsch has been plotted and on is the verge of being executed.
On the facts, the court was convinced that the requisite danger to act existed here: (1) the formation by the Petitioners of a highly organized conspiracy with rigidly disciplined members subject to call when the leaders (the Petitioners) felt it was time for action; (2) the inflammable nature of world conditions; (3) similar uprisings in other countries; and (4) the touch and go nature of our relations with other countries with whom the Petitioners were ideologically aligned. Thus, the convictions of the Petitioners were justified.
Justice Hugo Black (Justice Black) While it is true that unfettered communication of ideas does entail danger, the benefits in the eyes of the Founders of this Nation, derived from free expression were worth the risk.
Justice William Douglas (Justice Douglas) If this were a case where the speaker was teaching techniques of sabotage, the assassination of the President, or the planting of bombs, I would concur in the judgment. But, the reality is that no such evidence was introduced at trial.
Justice Robert Jackson (J. Jackson) An individual cannot claim the constitutional protections of the First Amendment in advocating or teaching the overthrow of government by violence. I think such conduct can be made a crime, even without requiring a showing of an extremely high probability of success of a scheme.
Justice Felix Frankfurter (J. Frankfurter) The results we have reached are the product of a careful weighing of the following factors: (1) that social value of the speech being prohibited; (2) the chilling effect on legitimate speech that the punishment of any form of speech may have; and (3) the interest in the government in security.
Discussion. The Supreme Court of the United States (Supreme Court) is essentially allowing the prohibitions of advocacy of a particular doctrine in this case – the overthrow of the government by force. In later opinions the Supreme Court will adopt a more rigid test that focuses on whether a speaker is advocating actions.