Brief Fact Summary. The convictions of members and creators of the Communist Party under the Smith Act (the Act) were upheld by the Supreme Court of the United States (Supreme Court) which held that the Act was constitutional because it was directed at advocacy not discussion.
Synopsis of Rule of Law. In each case the courts must ask whether the gravity of “evil,” discounted by its improbability, justifies such invasion of free speech as is necessary to avoid danger in order to determine if the speech is protected or not.
Held. Yes. Judgment of the Court of Appeals Affirmed. The Act is constitutional because it is directed at advocacy rather than discussion. Further, the gravity of evil posed by the Communist Party justifies such an invasion of free speech in order to avoid danger. Petitioners intended to overthrow the United States’ Government as soon as the circumstances permitted. Their conspiracy to organize the Communist Party and to teach and advocate the overthrow of the Government by force and violence created a “clear and present danger” of such an attempt. Therefore, the Act is constitutional.
Dissent. The First Amendment of the United States Constitution (Constitution) does not permit the Court to sustain laws suppressing freedom of speech and press on the basis of Congress’ or our own notions of mere “reasonableness.”
No such evidence of seditious conduct or danger to the Government was introduced.
Concurrence. The considerations of security and free speech underlie the decision of the case before us.
The “clear and present danger” test should be saved to be used as a “rule of reason” in the kind of case for which it was devised.
Discussion. This case clearly adopts the “clear and present danger” test created by Judge Learned Hand.