Supreme
Court of the United States
DENNIS et al.
v.
UNITED STATES.
No. 336.
Argued Dec. 4, 1950.
Decided June 4, 1951.
Eugene Dennis, and others, were convicted in the United States
District Court for the Southern District of New York on an indictment for violation
of Section 3 of the Smith Act, 18 U.S.C.A. Section 2385, in that defendants
conspired to organize the Communist Party of the United States as a group to
teach and advocate the overthrow of the Government of the United States by
force and violence and they appealed. To review a judgment of the Court of
Appeals, 183 F.2d 201, L. Hand, Chief Judge, affirming the conviction, the
defendants brought certiorari. The Supreme Court, Mr. Chief Justice Vinson,
held that Section 2(a)(1), 2(a)(3), and 3 of the Smith Act do not inherently,
or as construed or applied in the instant case, violate the First Amendment and
other provisions of the Bill of Rights, and that they do not violate the First
and Fifth Amendments because of
indefiniteness.
Judgments affirmed.
Mr. Justice Black and Mr. Justice Douglas dissented.
See also 184 F.2d 280, 340 U.S. 887, 71 S.Ct.
133.
**860 *495
Messrs. Harry Sacher, New York City, George W.
Crockett, Jr., Washington, D.C., Abraham J. Isserman,
Los Angeles, Cal., for petitioners.
Messrs. Philip B. Perlman, Sol. Gen.,
Irving S. Shapiro, Washington, D.C., for respondent.
Mr. Chief Justice VINSON
announced the judgment of the Court
and an opinion in which Mr.
Justice REED, Mr. Justice BURTON and Mr. Justice MINTON join.
Petitioners were indicted in July, 1948, for violation of the
conspiracy provisions of the Smith Act, 54 Stat. 671, 18 U.S.C. (1946 ed.) s
11, during the period of April, 1945, to July, 1948. The pretrial motion to
quash the indictment on the grounds, inter alia, that
the statute was unconstitutional was denied,
United States v. Foster, D.C., 80 F.Supp. 479, and
the case was set for trial on January 17, 1949. A verdict of guilty as to all
the petitioners was returned by the jury on October 14, 1949. The Court of
Appeals affirmed the convictions. 183 F.2d 201. We granted certiorari, 340 U.S.
863, 71 S.Ct. 91, limited to the following two
questions: (1) Whether either s 2 or s 3 of the Smith *496 Act,
inherently or as construed and applied in the instant case, violates the First
Amendment and other provisons of the Bill of Rights;
(2) whether either s 2 or s 3 of the Act, inherently or as construed and
applied in the instant case, violates the First and Fifth Amendments because of
indefiniteness.
Sections 2 and 3 of the Smith Act, 54 Stat. 671, 18 U.S.C. (1946
ed.) ss 10, 11 (see present 18 U.S.C. s 2385),
provide as follows:
‘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 **861 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 *497 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.’
The indictment charged the petitioners with wilfully
and knowingly conspiring (1) to organize as the Communist Party of the United
States of America a society, group and assembly of persons who teach and
advocate the overthrow and destruction of the Government of the United States
by force and violence, and (2) knowingly and wilfully
to advocate and teach the duty and necessity of overthrowing and destroying the
Government of the United States by force and violence.
The indictment further alleged that s 2 of the Smith Act proscribes these acts
and that any conspiracy to take such action is a violation of s 3 of the Act.
The trial of the case extended over nine months, six of which were
devoted to the taking of evidence, resulting in a record of 16,000 pages. Our
limited grant of the writ of certiorari has removed from our consideration any
question as to the sufficiency of the evidence to support the jury’s
determination that petitioners are guilty of the offense charged. Whether on
this record petitioners did in fact advocate the overthrow of the Government by
force and violence is not before us, and we must base any discussion of this
point upon the conclusions stated in the opinion of the Court of Appeals, which
treated the issue in great detail. That court held that the record in this case
amply supports the necessary finding of the jury that petitioners, the leaders
of the Communist Party in this country, were unwilling to work within our
framework of democracy, but intended to initiate a violent revolution whenever
the propitious occasion appeared. Petitioners dispute the meaning to be drawn
from the evidence, contending that the Marxist*498 -Leninist doctrine
they advocated taught that force and violence to achieve a Communist form of
government in an existing democratic state would be necessary only because the
ruling classes of that state would never permit the transformation to be
accomplished peacefully, but would use force and violence to defeat any peaceful political and economic gain the
Communists could achieve. But the Court of Appeals held that the record
supports the following broad conclusions: By virtue of their control over the
political apparatus of the Communist Political Association,[1] [FN1] petitioners were
able to transform that organization into the Communist Party; that the policies
of the Association were changed from peaceful cooperation with the United
States and its economic and political structure to a policy which had existed
before the United States and the Soviet Union were fighting a common enemy,
namely, a policy which worked for the overthrow of the Government by force and
violence; that the Communist Party is a highly disciplined organization, adept
at infiltration into strategic positions, use of aliases, and double-meaning
language; that the Party is rigidly controlled; that Communists, unlike other
political parties, tolerate no dissension from the policy laid down by the
guiding forces, but that the approved program is slavishly followed by the
members of the Party; that the literature of the Party and the statements and
activities of its leaders, petitioners here, advocate, and the general goal of
the Party, was, during **862 the period in question, to achieve a
successful overthrow of the existing order by force and violence.
[1] It will be helpful in clarifying the
issues to treat next the contention that the trial judge improperly interpreted
the statute by charging that the statute required an unlawful intent before the
jury could convict. More specifically, he charged that the jury could not find
the petitioners guilty under the indictment unless they found that petitioners
had the intent ‘to overthrow * * * the Government of the United States by force
and violence as speedily as circumstances would permit.’
[2] Section 2(a)(1) makes it unlawful ‘to
knowingly or willfully advocate, * * * or teach the duty, necessity,
desirability, or propriety of overthrowing or destroying any government in the
United States by force or violence * * *.’; Section 2(a)(3), ‘to organize or
help to organize any society, group, or assembly of persons who teach, advocate
or encourage the overthrow * * *.’ Because of the fact that s 2(a)(2) expressly
requires a specific intent to overthrow the Government, and because of the
absence of precise language in the foregoing subsections, it is claimed that Congress
deliberately omitted any such requirement.
We do not agree. It would require a far greater indication or congressional
desire that intent not be made an element of the crime than the use of the
disjunctive ‘knowingly or willfully’ in s 2(a)(1), or the omission of exact
language in s 2(a)(3). The structure and purpose of the statute demand the
inclusion of intent as an element of the crime. Congress was concerned with
those who advocate and organize for the overthrow of the Government. Certainly
those who recruit and combine for the purpose of advocating overthrow intend to
bring about that overthrow. We hold that the statute requires as an essential
element of the crime proof of the intent of those who are charged with its
violation to overthrow the Government by force and violence. See *500
Williams v. United States, 1951, 341 U.S. 97, 101--102, 71 S.Ct.
576, 579, 580; Screws v. United States, 1945, 325 U.S. 91, 101--105, 65 S.Ct. 1031, 1035, 1037, 8. L.Ed.
1495; Cramer v. United States, 1945, 325 U.S. 1, 31, 65 S.Ct.
918, 933, 89 L.Ed. 1441.
[3][4] Nor
does the fact that there must be an investigation of a state of mind under this
interpretation afford any basis for rejection of that meaning. A survey of
Title 18 of the U.S.Code indicates that the vast
majority of the crimes designated by that Title require, by express language,
proof of the existence of a certain mental state, in words such as ‘knowingly,’
‘maliciously,’ ‘wilfully,’ ‘with the purpose of,’
‘with intent to,’ or combinations or permutations of these and synonymous
terms. The existence of a mens rea is the
rule of, rather than the exception to, the principles of Anglo-American
criminal jurisprudence. See American Communications Ass’n
v. Douds, 1950, 339 U.S. 382, 411, 70 S.Ct. 674, 690, 94 L.Ed. 925.
[5] It has been suggested that the
presence of intent makes a difference in the law when an ‘act otherwise
excusable or carrying minor penalties’ is accompanied by such an evil intent.
Yet the existence of such an intent made the killing condemned in Screws,
supra, and the beating in Williams, supra, both clearly and severely punishable
under state law, offenses constitutionally punishable by the Federal
Government. In those cases, the Court required the Government to prove that the
defendants intended to deprive the victim of a constitutional right. If that
precise mental state may be an essential element of a crime, surely an intent
to overthrow the Government of the United States by advocacy thereof is equally
susceptible of proof. [FN2]
FN2.
We have treated this point because of the discussion accorded it by the Court
of Appeals and its importance to the administration of this statute, compare
Johnson v. United States, 1943, 318 U.S. 189, 63 S.Ct.
549, 87 L.Ed. 704, although petitioners themselves
requested a charge similar to the one given, and under Rule 30 of the Federal
Rules of Criminal Procedure, 18 U.S.C.A., would appear to be barred from
raising this point on appeal. Cf. Boyd v.
United States, 1926, 271 U.S. 104, 46 S.Ct. 442, 70 L.Ed. 857.
**863 *501
II.
[6][7] The
obvious purpose of the statute is to protect existing Government, not from
change by peaceable, lawful and constitutional means, but from change by
violence, revolution and terrorism. That it is within the power of the Congress
to protect the Government of the United States from armed rebellion is a
proposition which requires little discussion. Whatever theoretical merit there
may be to the argument that there is a ‘right’ to rebellion against dictatorial
governments is without force where the existing structure of the government
provides for peaceful and orderly change. We reject any principle of
governmental helplessness in the face of preparation for revolution, which
principle, carried to its logical conclusion, must lead to anarchy. No one
could conceive that it is not within the power of Congress to prohibit acts
intended to overthrow the Government by force and violence. The question with
which we are concerned here is not whether Congress has such power, but whether
the means which it has employed conflict with the First and Fifth Amendments to
the Constitution.
[8] One of the bases for the contention
that the means which Congress has employed are invalid takes the form of an
attack on the face of the statute on the
grounds that by its terms it prohibits academic discussion of the merits of
Marxism-Leninism, that it stifles ideas and is contrary to all concepts of a
free speech and a free press. Although we do not agree that the language itself
has that significance, we must bear in mind that it is the duty of the federal
courts to interpret federal legislation in a manner not inconsistent with the
demands of the Constitution. American Communications Ass’n
v. Douds, 1950, 339 U.S. 382, 407, 70 S.Ct. 674, 688, 94 L.Ed. 925. We
are not here confronted with cases similar to Thornhill
v. State of Alabama, 1940, 310 U.S. 88, 60 S.Ct. 736,
84 L.Ed. 1093; Herndon v. Lowry, 1937, 301 U.S. 242,
57 S.Ct. 732, 81 L.Ed.
1066; and DeJonge v. State of Oregon, 1937, 299 U.S.
353, 57 S.Ct. 255, 81 L.Ed.
278, *502 where a state court had given a meaning to a state statute
which was inconsistent with the Federal Constitution. This is a federal statute
which we must interpret as well as judge. Herein lies the fallacy of reliance
upon the manner in which this Court has treated judgments of state courts.
Where the statute as construed by the state court transgressed the First
Amendment, we could not but invalidate the judgments of conviction.
[9][10]
The very language of the Smith Act negates the interpretation which petitioners
would have us impose on that Act. It is directed at advocacy, not discussion.
Thus, the trial judge properly charged the jury that they could not convict if
they found that petitioners did ‘no more than pursue peaceful studies and discussions or teaching
and advocacy in the realm of ideas.’ He further charged that it was not
unlawful ‘to conduct in an American college and university a course explaining
the philosophical theories set forth in the books which have been placed in
evidence.’ Such a charge is in strict accord with the statutory language, and
illustrates the meaning to be placed on those words. 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. Rather Congress was concerned with the very kind of activity in which
the evidence showed these petitioners engaged.
III.
But although the statute is not directed at the hypothetical cases
which petitioners have conjured, its application in this case has resulted in
convictions for the teaching and advocacy of the overthrow of the Government by
force and violence, which, even though coupled with the intent to **864
accomplish that overthrow, contains an element of speech. For this reason, we
must pay special *503 heed to the demands of the First Amendment marking
out the boundaries of speech.
[11][12]
We pointed out in Douds, supra, that the basis of the
First Amendment is the hypothesis that speech can rebut speech, propaganda will
answer propaganda, free debate od ideas will result
in the wisest governmental policies. It is
for this reason that this Court has recognized the inherent value of free
discourse. An analysis of the leading cases in this Court which have involved
direct limitations on speech, however, will demonstrate that both the majority
of the Court and the dissenters in particular cases have recognized that this
is not an unlimited, unqualified right, but that the societal value of speech
must, on occasion, be subordinated to other values and considerations.
No important case involving free speech was decided by this Court
prior to Schenck v. United States, 1919, 249 U.S. 47,
39 S.Ct. 247, 63 L.Ed. 470.
Indeed, the summary treatment accorded an argument based upon an individual’s
claim that the First Amendment protected certain utterances indicates that the
Court at earlier dates placed no unique emphasis upon that right. [FN3] It was not until the classic dictum of
Justice Holmes in the Schenck case that speech per se
received that emphasis in a majority opinion. That case involved a conviction
under the Criminal Espionage Act, 40 Stat. 217. The question the Court faced
was whether the evidence was sufficient to sustain the conviction. 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 *504 to prevent.’ 249 U.S. at page 52,
39 S.Ct. at page 249, 63 L.Ed.
470. But the force of even this expression
is considerably weakened by the reference at the end of the opinion to Goldman
v. United States, 1918, 245 U.S. 474, 38 S.Ct. 166,
62 L.Ed. 410, a prosecution under the same statute.
Said Justice Holmes, ‘Indeed (Goldman) might be said to dispose of the present
contention if the precedent covers all media concludendi.
But as the right to free speech was not referred to specially, we have thought
fit to add a few words.’ 249 U.S. at page 52, 39 S.Ct.
at page 249, 63 L.Ed. 470. The fact is inescapable,
too, that the phrase bore no connotation that the danger was to be any threat
to the safety of the Republic. The charge was causing and attempting to cause
insubordination in the military forces and obstruct recruiting. The
objectionable document denounced conscription and its most inciting sentence
was, ‘You must do your share to maintain, support and uphold the rights of the
people of this country.’ 249 U.S. at page 51, 39 S.Ct.
at page 248, 63 L.Ed. 470. Fifteen thousand copies
were printed and some circulated. This insubstantial gesture toward
insubordination in 1917 during war was held to be a clear and present danger of
bringing about the evil of military insubordination.
FN3.
Toledo Newspaper Co. v. United States, 1918, 247 U.S. 402, 38 S.Ct. 560, 62 L.Ed. 1186; Fox v.
State of Washington, 1915, 236 U.S. 273, 35 S.Ct.
383, 59 L.Ed. 573; Davis v. Com. of Massachusetts,
1897, 167 U.S. 43, 17 S.Ct.
731, 42 L.Ed. 71; see Gompers
v. Bucks Stove & Range Co., 1911, 221 U.S. 418, 439, 31 S.Ct.
492, 497, 55 L.Ed. 797; Robertson v. Baldwin, 1897,
165 U.S. 275, 281, 17 S.Ct. 326, 328, 41 L.Ed. 715.
In several later cases involving convictions under the Criminal
Espionage Act, the nub of the evidence the Court held sufficient to meet the
‘clear and present danger’ test enunciated in Schenck
was as follows: Frohwerk v. United States, 1919, 249
U.S. 204, 39 S.Ct. 249, 63 L.Ed.
561--publication of twelve newspaper articles attacking the war; Debs v. United
States, 1919, 249 U.S. 211, 39 S.Ct. 252, 63 L.Ed. 566--one speech attacking United States’
participation in the war; Abrams v. United States, 1920, 250 U.S. 616, 40 **865
S.Ct. 17, 63 L.Ed.
1173--circulation of copies of two different socialist circulars attacking the
war; Schaefer v. United States, 1920, 251 U.S. 466, 40 S.Ct.
259, 64 L.Ed. 360--publication of a Germanlanguage newspaper with allegedly false articles,
critical of capitalism and the war; Pierce v. United States, 1920, 252 U.S.
239, 40 S.Ct. 205, 64 L.Ed.
542--circulation of copies of a four-page pamphlet written by a clergyman,
attacking *505 the purposes of the war and United States’ participation
therein. Justice Holmes wrote the opinions for a unanimous Court in Schenck, Frohwerk and Debs. He
and Justice Brandeis dissented in Abrams, Schaefer and Pierce. The basis of these dissents was that, because of the
protection which the First Amendment gives to speech, the evidence in each case
was insufficient to show that the defendants had created the requisite danger
under Schenck. But these dissents did not mark a
change of principle. The dissenters doubted only the probable effectiveness of
the puny efforts toward subversion. in Abrams, they wrote, ‘I do not doubt for
a moment that by the same reasoning that would justify punishing persuasion to
murder, the United States constitutionally may punish speech that produces or
is intended to produce a clear and imminent danger that it will bring about
forthwith certain substantive evils that the United States constitutionally may
seek to prevent.’ 250 U.S. at page 627, 40 S.Ct. at
page 21, 63 L.Ed. 1173. And in Schaefer the test was
said to be ‘one of degree’, 251 U.S. at page 482, 40 S.Ct.
at page 265, 64 L.Ed. 360, although it is not clear
whether ‘degree’ refers to clear and present danger or evil. Perhaps both were
meant.
[13] The rule we deduce from these cases
is that where an offense is specified by a statute in nonspeech
or nonpress terms, a conviction relying upon speech
or press as evidence of violation may be sustained only when the speech or
publication created a ‘clear and present danger’ of attempting or accomplishing
the prohibited crime, e.g., interference with enlistment. The dissents, we
repeat, in emphasizing the value of speech, were addressed to the argument of
the sufficiency of the evidence.
The next important case [FN4]
before the Court in which free speech was the crux of the conflict was Gitlow v. People of State of New York, 1925, 268 U.S. 652,
45 S.Ct. 625, 626, 69 L.Ed.
1138. There New York had *506 made it a crime to advocate ‘the necessity
or propriety of overthrowing * * * organized government by force * * *.’ The
evidence of violation of the statute was that the defendant had published a
Manifesto attacking the Government and capitalism. The convictions were
sustained, Justices Holmes and Brandeis dissenting. The majority refused to
apply the ‘clear and present danger’ test to the specific utterance. Its
reasoning was as follows: The ‘clear and present danger’ test was applied to
the utterance itself in Schenck because the question
was merely one of sufficiency of evidence under an admittedly constitutional
statute. Gitlow, however, presented a different
question. There a legislature had found that a certain kind of speech was,
itself, harmful and unlawful. The constitutionality of such a state statute had
to be adjudged by this Court just as it determined the constitutionality of any
state statute, namely, whether the statute was ‘reasonable.’ Since it was
entirely reasonable for a state to attempt to protect itself from violent
overthrow the statute was perforce reasonable. The only question remaining in
the case became whether there was evidence to support the conviction, a
question which gave the majority no difficulty. Justices Holmes and Brandeis
refused to accept this approach, but insisted that wherever speech was the
evidence of the violation, it was necessary
to show that the speech created the ‘clear and present danger’ of the
substantive evil which the legislature had the **866 right to prevent.
Justices Holmes and Brandeis, then, made no distinction between a federal
statute which made certain acts unlawful, the evidence to support the
conviction being speech, and a statute which made speech itself the crime. This
approach was emphasized in Whitney v. People of State of California, 1927, 274
U.S. 357, 47 S.Ct. 641, 71 L.Ed.
1095, where the Court was confronted with a conviction under the California
Criminal Syndicalist statute. The Court sustained the
conviction, Justices Brandeis and Holmes *507 concurring in the result.
In their concurrence they repeated that even though the legislature had
designated certain speech as criminal, this could not prevent the defendant
from showing that there was no danger that the substantive evil would be
brought about.
FN4.
Cf. Gilbert v. State of Minnesota, 1920, 254 U.S. 325, 41 S.Ct.
125, 65 L.Ed. 287.
[14] Although no case subsequent to
Whitney and Gitlow has expressly overruled the
majority opinions in those cases, there is little doubt that subsequent
opinions have inclined toward the Holmes-Brandeis rationale. [FN5] And in
American Communications Ass’n v. Douds,
supra (339 U.S. 382, 70 S.Ct.
681), we were called upon to decide the validity of s 9(h) of the
Labor-Management Relations Act of 1947, 29 U.S.C.A. s 159(h). That section
required officials of unions which desired to avail themselves of the
facilities of the National Labor Relations Board to take oaths that they did
not belong to the Communist Party and that they did not believe in the
overthrow of the Government by force and violence. We pointed out that Congress
did not intend to punish brief, but rather intended to regulate the conduct of
union affairs. We therefore held that any indirect sanction on speech which
might arise from the oath requirement did not present a proper case for the
‘clear and present danger’ test, for the regulation was aimed at conduct rather
than speech. In discussing the proper measure of evaluation of this kind of
legislation, we suggested that the Holmes-Brandeis philosophy insisted that
where *508 there was a direct restriction upon speech, a ‘clear and
present danger’ that the substantive evil would be caused was necessary before
the statute in question could be constitutionally applied. And we stated, ‘(The
First) Amendment requires that one be permitted to believe what he will. It
requires that one be permitted to advocate what he will unless there is a clear
and present danger that a substantial public evil will result therefrom.’ 339 U.S. at page 412, 70 S.Ct.
at page 691, 94 L.Ed. 925. But we further suggested
that neither Justice Holmes nor Justice Brandeis ever envisioned that a
shorthand phrase should be crystallized into a rigid rule to be applied inflexibly without regard to
the circumstances of each case. Speech is not an absolute, above and beyond
control by the legislature when its judgment, subject to review here, is that
certain kinds of speech are so undesirable as to warrant criminal sanction.
Nothing is more certain in modern society than the principle that there are no
absolutes, that a name, a phrase, a standard has meaning only when associated
with the considerations which gave birth to the nomenclature. See Douds, 339 U.S. at page 397, 70 S.Ct.
at page 683, 94 L.Ed. 925. **867 To those who
would paralyze our Government in the face of impending threat by encasing it in
a semantic straitjacket we must reply that all concepts are relative.
FN5. Contempt
of court: Craig v. Harney, 1947, 331 U.S. 367, 368, 373, 67 S.Ct.
1249, 1251, 1253, 91 L.Ed. 1546; Pennekamp
v. State of Florida, 1946, 328 U.S. 331, 333--336, 66 S.Ct.
1029, 1030--1032, 90 L.Ed. 1295; Bridges v. State of
California, 1941, 314 U.S. 252, 260--263, 62 S.Ct.
190, 192--194, 86 L.Ed. 192.
Validity of state statute: Thomas v.
Collins, 1945, 323 U.S. 516, 530, 65 S.Ct. 315, 322,
89 L.Ed. 430; Taylor v. State of Mississippi, 1943,
319 U.S. 583, 589--590, 63 S.Ct. 1200, 1203--1204, 87
L.Ed. 1600; Thornhill v.
State of Alabama, 1940, 310 U.S. 88, 104--406, 60 S.Ct.
736, 745--746, 84 L.Ed. 1093. Validity of local ordinance or regulation: West
Virginia State Board of Education v. Barnette, 1943,
319 U.S. 624, 639, 63 S.Ct. 1178, 1186, 87 L.Ed. 1628; Carlson v. People of State of California, 1940,
310 U.S. 106, 113, 60 S.Ct. 746, 749, 84 L.Ed. 1104.
Common law offense: Cantwell v. State of
Connecticut, 1940, 310 U.S. 296, 308, 311, 60 S.Ct.
900, 905, 906, 84 L.Ed. 1213.
[15] In this case we are squarely
presented with the application of the ‘clear and present danger’ test, and must
decide what that phrase imports. We first note that many of the cases in which
this Court has reversed convictions by use of this or similar tests have been
based on the fact that the interest which the State was attempting to protect
was itself too insubstantial to warrant restriction of speech. In this category
we may put such cases as Schneider v. State, 1939, 308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. 155; Cantwell
v. State of Connecticut, 1940, 310 U.S. 296, 60 S.Ct.
900, 84 L.Ed. 1213; Martin v. City of Struthers,
1943, 319 U.S. 141, 63 S.Ct. 862, 87 L.Ed. 1313; West Virginia State Board of Education *509
v. Barnette, 1943, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628; Thomas
v. Collins, 1945, 323 U.S. 516, 65 S.Ct. 315, 89 L.Ed. 430; Marsh v. State of Alabama, 1945, 326 U.S. 501,
66 S.Ct. 276, 90 L.Ed. 265;
but cf. Prince v. Com. of Massachusetts, 1944, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645; Cox v.
State of New Hampshire, 1941, 312 U.S. 569,
61 S.Ct. 762, 85 L.Ed.
1049. Overthrow of the Government by force and violence is certainly a
substantial enough interest for the Government to limit speech. Indeed, this is
the ultimate value of any society, for if a society cannot protect its very
structure from armed internal attack, it must follow that no subordinate value
can be protected. If, then, this interest may be protected, the literal problem
which is presented is what has been meant by the use of the phrase ‘clear and present
danger’ of the utterances bringing about the evil within the power of Congress
to punish.
[16][17]
Obviously, the words 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. The argument that there is no need for
Government to concern itself, for Government is strong, it possesses ample
powers to put down a rebellion, it may defeat the revolution with ease needs no
answer. For that is not the question. Certainly an attempt to overthrow the
Government by force, even though doomed from the outset because of inadequate
numbers or power of the revolutionists, is a sufficient evil for Congress to
prevent. The damage which such attempts create both physically and politically to a nation makes it impossible to measure the
validity in terms of the probability of success, or the immediacy of a
successful attempt. 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 ‘*510 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. We must therefore reject the
contention that success or probability of success is the criterion.
The situation with which Justices Holmes and Brandeis were
concerned in Gitlow was a comparatively isolated
event, bearing little relation in their minds to any substantial threat to the
safety of the community. Such also is true of cases like Fiske
v. State of Kansas, 1927, 274 U.S. 380, 47 S.Ct. 655,
71 L.Ed. 1108, and DeJonge
v. State of Oregon, 1937, 299 U.S. 353, 57 S.Ct. 255,
81 L.Ed. 278; but cf. Lazar v. Com. of Pennsylvania,
1932, 286 U.S. 532, 52 S.Ct. 639, 76 L.Ed. 1272. They were not confronted with any situation
comparable to the instant one--the development of an apparatus designed and
dedicated to the overthrow of the Government, in the context of world crisis
after crisis.
**868 [18] Chief Judge Learned Hand, writing for the
majority below, 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.’ 183 F.2d at 212. We adopt this statement of the
rule. As articulated by Chief Judge Hand, it is as succinct and inclusive as
any other we might devise at this time. It takes into consideration those
factors which we deem relevant, and relates their significances. More we cannot
expect from words.
[19][20]
Likewise, we are in accord with the court below, which affirmed the trial
court’s finding that the requisite danger existed. The mere fact that from the
period 1945 to 1948 petitioners’ activities did not result in an attempt to
overthrow the Government by force and violence is of course no answer to the
fact that there was a group that was ready to make the attempt. The formation *511
by petitioners of such a highly organized conspiracy, with rigidly disciplined
members subject to call when the leaders, these petitioners, felt that the time
had come for action, coupled with the inflammable nature of world conditions,
similar uprisings in other countries, and the touch-and-go nature of our
relations with countries with whom petitioners were in the very least
ideologically attuned, convince us that their convictions were justified on
this score. And this analysis disposes of the contention that a conspiracy to
advocate, as distinguished from the advocacy itself, cannot be constitutionally
restrained, because it comprises only the preparation. It is the existence of
the conspiracy which creates the danger. Cf.
Pinkerton v. United States, 1946, 328 U.S. 640, 66 S.Ct.
1180, 90 L.Ed. 1489; Goldman v. United States, 1918,
245 U.S. 474, 38 S.Ct. 166, 62 L.Ed.
410; United States v. Rabinowich, 1915, 238 U.S. 78,
35 S.Ct. 682, 59 L.Ed.
1211. If the ingredients of the reaction are present, we cannot bind the
Government to wait until the catalyst is added.
IV.
[21] Although we have concluded that the
finding that there was a sufficient danger to warrant the application of the
statute was justified on the merits, there remains the problem of whether the
trial judge’s treatment of the issue was correct. He charged the jury, in
relevant part, as follows:
‘In further construction and interpretation of the statute I
charge you that it is not the abstract doctrine of overthrowing or destroying
organized government by unlawful means which is denounced by this law, but the
teaching and advocacy of action for the accomplishment of that purpose, by
language reasonably and ordinarily calculated to incite persons to such action.
Accordingly, you cannot find the defendants or any of them guilty of the crime
charged *512 unless you are satisfied beyond a reasonable doubt that
they conspired to organize a society, group and assembly of persons who teach
and advocate the overthrow or destruction of the Government of the United
States by force and violence and to advocate and teach the duty and necessity
of overthrowing or destroying the Government of the United States by force and violence, with the intent that such teaching
and advocacy be of a rule or principle of action and by language reasonably and
ordinarily calculated to incite persons to such action, all with the intent to
cause the overthrow or destruction of the Government of the United States by
force and violence as speedily as circumstances would permit.
‘If you are satisfied that the evidence establishes beyond a
reasonable doubt that the defendants, or any of them, are guilty of a violation
of the statute, as I have interpreted it to you, I find as matter of law that
there is sufficient danger of a substantive evil that the Congress **869
has a right to prevent to justify the application of the statute under the
First Amendment of the Constitution.
‘This is matter of law about which you have no concern. It is a
finding on a matter of law which I deem essential to support my ruling that the
case should be submitted to you to pass upon the guilt or innocence of the
defendants. * * *’
It is thus clear that he reserved the question of the existence of
the danger for his own determination, and the question becomes whether the
issue is of such a nature that it should have been submitted to the jury.
The first paragraph of the quoted instructions calls for the jury
to find the facts essential to establish the substantive crime, violation of ss 2(a)(1) and 2(a)(3) of *513 the Smith Act,
involved in the conspiracy charge. There can be
no doubt that if the jury found those facts against the petitioners violation
of the Act would be established. The argument that the action of the trial
court is erroneous, in declaring as a matter of law that such violation shows
sufficient danger to justify the punishment despite the First Amendment, rests
on the theory that a jury must decide a question of the application of the
First Amendment. We do not agree.
[22] When facts are found that establish
the violation of a statute, the protection against conviction afforded by the
First Amendment is a matter of law. The doctrine that there must be a clear and
present danger of a substantive evil that Congress has a right to prevent is a
judicial rule to be applied as a matter of law by the courts. The guilt is
established by proof of facts. Whether the First Amendment protects the
activity which constitutes the violation of the statute must depend upon a
judicial determination of the scope of the First Amendment applied to the
circumstances of the case.
Petitioners’ reliance upon Justice Brandeis’ language in his
concurrence in Whitney, supra, is misplaced. In that case Justice Brandeis
pointed out that the defendant could have made the existence of the requisite
danger the important issue at her trial, but that she had not done so. In
discussing this failure, he stated that the defendant could have had the issue
determined by the court or the jury. [FN6] No
realistic construction of this disjunctive language *514 could arrive at
the conclusion that he intended to state that the
question was only determinable by a jury. Nor is the incidental statement of
the majority in Pierce, supra, of any more persuasive effect. [FN7] There the issue of the probable effect of
the publication had been submitted to the jury, and the majority was apparently
addressing its remarks to the contention of the dissenters that the jury could
not reasonably have returned a verdict of guilty on the evidence. [FN8] Indeed, **870 in the very case in
which the phrase was born, Schenck, this Court itself
examined the record to find whether the requisite danger appeared, and the
issue was not submitted to a jury. And in every later case in which the Court has
measured the validity of a statute by the ‘clear and present danger’ test, that
determination has been by the court, the question of the danger not being
submitted to the jury.
FN6.
‘Whether in 1919, when Miss Whitney did the things complained of, there was in
California such clear and present danger of serious evil, might have been made
the important issue in the case. She might have required that the issue be
determined either by the court or the jury. She claimed below that the statute
as applied to her violated the Federal Constitution; but she did not claim that
it was void because there was no clear and present danger of serious evil, nor
did she request that the existence of these conditions of a valid measure thus
restricting the rights of free speech and assembly be passed upon by the court
or a jury. On the other hand, there was
evidence on which the court or jury might have found that such danger existed.’
(Emphasis added.) 274 U.S. at page 379, 47 S.Ct. at
page 649, 71 L.Ed. 1095.
FN7.
‘Whether the printed words would in fact produce as a proximate result a
material interference with the recruiting or enlistment service, or the
operation or success of the forces of the United States, was a question for the
jury to decide in view of all the circumstances of the time and considering the
place and manner of distribution.’ 1920, 252 U.S. 239, 250, 40 S.Ct. 205, 210, 64 L.Ed. 542.
FN8.
A similarly worded expression is found in that part of the majority opinion
sustaining the overruling of the defendants’ general demurrer to the
indictment. 252 U.S. at 244, 40 S.Ct. at page 207, 64
L.Ed. 542. Since the defendants had not raised the
issue of ‘clear and present danger’ at the trial, it is clear that the Court
was not faced with the question whether the trial judge erred in not
determining, as a conclusive matter, the existence or nonexistence of a ‘clear
and present danger’. The only issue to which the remarks were addressed was
whether the indictment sufficiently alleged the violation.
[23] The question in this case is whether
the statute which the legislature has enacted may be constitutionally applied.
In other words, the Court must examine judicially *515 the application
of the statute to the particular situation, to ascertain if the Constitution
prohibits the conviction. We hold that the statute may be applied where there
is a ‘clear and present danger’ of the substantive evil which the legislature
had the right to prevent. Bearing, as it does, the marks of a ‘question of
law,’ the issue is properly one for the judge to decide.
V.
[24] There remains to be discussed the
question of vagueness--whether the statute as we have interpreted it is too
vague, not sufficiently advising those who would speak of the limitations upon
their activity. It is urged that such vagueness contravenes the First and Fifth
Amendments. This argument is particularly nonpersuasive
when presented by petitioners, who, the jury found, intended to overthrow the
Government as speedily as circumstances would permit. See Abrams v. United States,
1919, 250 U.S. 616, 627--629, 40 S.Ct. 17, 21, 63 L.Ed. 1173 (dissenting opinion); Whitney v. People of State
of California, 1927, 274 U.S. 357, 373, 47 S.Ct. 641,
647, 71 L.Ed. 1095 (concurring opinion); Taylor v.
State of Mississippi, 1943, 319 U.S. 583, 589, 63 S.Ct.
1200, 1203, 87 L.Ed. 1600. A claim of guilelessness
ill becomes those with evil intent. Williams v. United States, 1951, 341 U.S.
97, 101-- 102, 71 S.Ct.
576, 579, 580; Jordan v. De George, 1951, 341 U.S. 223, 71 S.Ct.
703; American Communication Ass’n v. Douds, 339 U.S. at 413, 70 S.Ct.
at page 691, 94 L.Ed. 925; Screws v. United States,
1945, 325 U.S. 91, 101, 65 S.Ct. 1031, 1035, 89 L.Ed. 1495.
[25][26]
We agree that the standard as defined is not a neat, mathematical formulary. Like
all verbalizations it is subject to criticism on the score of indefiniteness.
But petitioners themselves contend that the verbalization, ‘clear and present
danger’ is the proper standard. We see no difference, from the standpoint of
vagueness, whether the standard of ‘clear and present danger’ is one contained
in haec verba within the
statute, or whether it is the judicial measure of constitutional applicability.
We *516 have shown the indeterminate standard the phrase necessarily
connotes. We do not think we have rendered that standard any more indefinite by
our attempt to sum up the factors which are included within its scope. We think
it well serves to indicate to those who would advocate constitutionally
prohibited conduct that there is a line beyond which they may not go--a line
which they, in full knowledge of what they intend and the circumstances in
which their activity takes place, will well appreciate and understand.
Williams, supra, 341 U.S. at pages 101--102, 71 S.Ct.
at pages 579, 580; Jordan, supra, 341 U.S. 223, 71 S.Ct.
703; United States v. Petrillo, 1948, 332 U.S. 1, 7,
67 S.Ct. 1538, 1541, 91 L.Ed.
1877; United States v. Wurzback, 1930, 280 U.S. 396, 399, 50 S.Ct.
167, 168, 74 L.Ed. 508; Nash v. United States, 1913,
229 U.S. **871 373, 376--377, 33 S.Ct. 780,
781, 57 L.Ed. 1232. Where there is doubt as to the
intent of the defendants, the nature of their activities, or their power to
bring about the evil, this Court will review the convictions with the
scrupulous care demanded by our Constitution. But we are not convinced that
because there may be borderline cases at some time in the future, these
convictions should be reversed because of the argument that these petitioners
could not know that their activities were constitutionally proscribed by the
statute.
We have not discussed many of the questions which could be
extracted from the record, although they were treated in detail by the court
below. Our limited grant of the writ of certiorari has withdrawn from our
consideration at this date those questions, which include, inter alia, sufficiency of the evidence, composition of jury, and
conduct of the trial.
[27] We hold that ss
2(a)(1), 2(a)(3) and 3 of the Smith Act, do not inherently, or as construed or
applied in the instant case, violate the First Amendment and other provisions
of the Bill of Rights, or the First and Fifth Amendments because of
indefiniteness. Petitioners intended to overthrow the Government of the United
States as speedily as the circumstances would permit. Their conspiracy *517
to organize the Communist Party and to teach and advocate the overthrow of the
Government of the United States by force and violence
created a ‘clear and present danger’ of an attempt to overthrow the Government
by force and violence. They were properly and constitutionally convicted for
violation of the Smith Act. The judgments of conviction are affirmed.
Affirmed.
Mr. Justice CLARK took no part in the consideration or decision of
this case.
Mr. Justice FRANKFURTER, concurring in affirmance
of the judgment.
The defendants were convicted under s 3 of the Smith Act for
conspiring to violate s 2 of that Act, which makes it unlawful ‘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’. Act of June 28, 1940, s 2(a)(3), 54 Stat.
670, 671, 18 U.S.C. s 10, now 18 U.S.C. s 2385. The substance of the indictment
is that the defendants between April 1, 1945, and July 20, 1948, agreed to
bring about the dissolution of a body known as the Communist Political
Association and to organize in its place the Communist Party of the United
States; that the aim of the new party was ‘the overthrow and destruction of the
Government of the United States by force and violence’; that the defendants
were to assume leadership of the Party and
to recruit members for it and that the Party was to publish books and conduct
classes, teaching the duty and the necessity of forceful overthrow. The jury
found all the defendants guilty. With one exception, each was sentenced to
imprisonment for five years and to a fine of $10,000. The convictions were
affirmed by the Court of Appeals for the Second *518 Circuit. 183 F.2d
201. We were asked to review this affirmance on all
the grounds considered by the Court of Appeals. These included not only the
scope of the freedom of speech guaranteed by the Constitution, but also serious
questions regarding the legal composition of the jury and the fair conduct of
the trial. We granted certiorari, strictly limited, however, to the contention
that ss 2 and 3 of the Smith Act, inherently and as
applied, violated the First and Fifth Amendments. 340 U.S. 863, 71 S.Ct. 91. No attempt was made to seek an enlargement of the
range of questions thus defined, and these alone are now open for our
consideration. All others are foreclosed by the decision of the Court of
Appeals.
As thus limited, the controversy in this Court turns essentially
on the instructions **872 given to the jury for determining guilt or
innocence. U.S. v. Foster, D.C., 9 F.R.D. 367. The first question is
whether--wholly apart from constitutional matters--the judge’s charge properly
explained to the jury what it is that the Smith Act condemns. The conclusion
that he did so requires no labored argument.
On the basis of the instructions, the jury found, for the purpose of our
review, that the advocacy which the defendants conspired to promote was to be a
rule of action, by language reasonably calculated to incite persons to such
action, and was intended to cause the overthrow of the Government by force and
violence as soon as circumstances permit. This brings us to the ultimate issue.
In enacting a statute which makes it a crime for the defendants to conspire to
do what they have been found to have conspired to do, did Congress exceed its
constitutional power?
Few questions of comparable import have come before this Court in
recent years. The appellants maintain that they have a right to advocate a
political theory, so long, at least, as their advocacy does not create an
immediate danger of obvious magnitude to the very existence of *519 our
present scheme of society. On the other hand, the Government asserts the right
to safeguard the security of the Nation by such a measure as the Smith Act. Our
judgment is thus solicited on a conflict of interests of the utmost concern to
the well- being of the country. This conflict of interests cannot be resolved
by a dogmatic preference for one or the other, nor by a sonorous formula which
is in fact only a euphemistic disguise for an unresolved conflict. If
adjudication is to be a rational process, we cannot escape a candid examination
of the conflicting claims with full recognition that both are supported by
weighty title-deeds.
I.
There come occasions in law, as elsewhere, when the familiar needs
to be recalled. Our whole history proves even more decisively than the course
of decisions in this Court that the United States has the powers inseparable
from a sovereign nation. ‘America has chosen to be, in many respects, and to
many purposes, a nation; and for all these purposes, her government is
complete; to all these objects, it is competent.’ Chief Justice Marshall in Cohens v. Com. of Virginia, 6 Wheat. 264, 414, 5 L.Ed. 257. The right of a government to maintain its
existence--self-preservation--is the most pervasive aspect of sovereignty.
‘Security against foreign danger,’ wrote Madison, ‘is one of the primitive
objects of civil society.’ The Federalist, No. 41. The constitutional power to
act upon this basic principle has been recognized by this Court at different
periods and under diverse circumstances. ‘To preserve its independence, and
give security against foreign aggression and encroachment, is the highest duty
of every nation, and to attain these ends nearly all other considerations are
to be subordinated. It matters not in what form such aggression and
encroachment come * * *. The government, possessing the powers which are to be
exercised *520 for protection and security, is clothed with authority to
determine the occasion on which the powers shall be called forth * * *.’ The Chinese Exclusion Case
(Chae Chan Ping v. United States) 130 U.S. 581, 606,
9 S.Ct. 623, 630, 32 L.Ed.
1068. See also De Lima v. Bidwell, 182 U.S. 1, 21 S.Ct. 743, 45 L.Ed. 1041;
Mackenzie v. Hare, 239 U.S. 299, 36 S.Ct. 106, 60 L.Ed. 297; State of Missouri v. Holland, 252 U.S. 416, 40 S.Ct. 382, 64 L.Ed. 641; United
States v. Curtiss-Wright Corp., 299 U.S. 304, 57 S.Ct. 216, 81 L.Ed. 255. The most
tragic experience in our history is a poignant reminder that the Nation’s
continued existence may be threatened from within. To protect itself from such
threats, the Federal Government ‘is invested with all those inherent and
implied powers which, at the time of adopting the Constitution, were generally
considered to belong to every government as such, and as being essential to the
exercise of its functions.’ Mr. Justice Bradley, concurring in Legal Tender
Cases, 12 Wall. **873 457, 554, 556, 20 L.Ed.
287; and see In re Debs, 158 U.S. 564, 582, 15 S.Ct.
900, 905, 39 L.Ed. 1092.
But even the all-embracing power and duty of self-preservation are
not absolute. Like the war power, which is indeed an aspect of the power of
self- preservation, it is subject to applicable constitutional limitations. See
Hamilton v. Kentucky Distilleries Co., 251 U.S. 146, 156, 40 S.Ct. 106, 108, 64 L.Ed. 194. Our
Constitution has no provision lifting restrictions upon governmental authority
during periods of emergency, although the scope of a restriction may depend on the circumstances in
which it is invoked.
The First Amendment is such a restriction. It exacts obedience
even during periods of war; it is applicable when war clouds are not figments
of the imagination no less than when they are. The First Amendment
categorically demands that ‘Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise thereof; or
abridging the freedom of speech, or of the press; or the right of the people peaceably
to assemble, and to petition the Government for a redress of grievances.’ The
right of a man to think what he *521 pleases, to write what he thinks,
and to have his thoughts made available for others to hear or read has an
engaging ring of universality. The Smith Act and this conviction under it no
doubt restrict the exercise of free speech and assembly. Does that, without
more, dispose of the matter?
Just as there are those who regard as invulnerable every measure
for which the claim of national survival is invoked, there are those who find
in the Constitution a wholly unfettered right of expression. Such literalness
treats the words of the Constitution as though they were found on a piece of
outworn parchment instead of being words that have called into being a nation
with a past to be preserved for the future. The soil in which the Bill of
Rights grew was not a soil of arid pedantry. The historic antecedents of the
First Amendment preclude the notion that its
purpose was to give unqualified immunity to every expression that touched on
matters within the range of political interest. The Massachusetts Constitution
of 1780 guaranteed free speech; yet there are records of at least three
convictions for political libels obtained between 1799 and 1803. [FN1] The Pennsylvania Constitution of 1790 and
the Delaware Constitution of 1792 expressly imposed liability for abuse of the
right of free speech. [FN2] Madison’s own
State put on its books in 1792 a statute confining the abusive exercise of the
right of utterance. [FN3] And it deserves to
be noted that in writing to John Adam’s wife, Jefferson did not rest his
condemnation of the Sedition Act of 1798 on his belief in *522
unrestrained utterance as to political matter. The First Amendment, he argued,
reflected a limitation upon Federal power, leaving the right to enforce
restrictions on speech to the States. [FN4]
FN1. Mass.Const., 1780, Part I, Art. XVI. See Duniway, Freedom of the Press in Massachusetts 144--146.
FN2. Pa.Const., 1790, Art. IX, s 7; Del.Const.,
1792, Art. I, s 5.
FN3. The General Assembly of Virginia
passed a statute on December 26, 1792, directed at establishment of ‘any
government separate from, or independent of the government of Virginia, within
the limits thereof, unless by act of the legislature of this commonwealth for
that purpose first obtained.’ The statute provided that ‘EVERY person * * * who
shall by writing or advised speaking, endeavour to
instigate the people of this commonwealth to erect or establish such government
without such assent as aforesaid, shall be adjudged guilty of a high crime and
misdemeanor * * *.’ Va.Code, 1803, c. CXXXVI.
FN4.
In a letter to Abigail Adams, dated September 11, 1804, Jefferson said with
reference to the Sedition Act:
‘Nor does the opinion of the
unconstitutionality and consequent nullity of that law remove all restraint
from the overwhelming torrent of slander which is confounding all vice and
virtue, all truth and falsehood in the US. The power to do that is fully
possessed by the several state legislatures. It was reserved to them, and was
denied to the general government, by the constitution according to our
construction of it. While we deny that Congress have a right to controul the freedom of the press, we have ever asserted
the right of the states, and their exclusive right, to do so.’
The letter will be published in a
forthcoming volume of The Papers of Thomas Jefferson (Boyd ed.), to which I am
indebted for its reproduction here in its exact form.
The Sedition Act of July 14, 1798, was directed
at two types of conduct. Section 1 made it a criminal offense to conspire ‘to
impede the operation of any law of the United States,’ and to ‘counsel, advise
or attempt to procure any insurrection, riot, unlawful assembly, or
combination’. Section 2 provided:
‘That if any person shall write, print,
utter or publish, or shall cause or procure to be written, printed, uttered or
published, or shall knowingly and willingly assist or aid in writing, printing,
uttering or publishing any false, scandalous and malicious writing or writings
against the government of the United States, or either house of the Congress of
the United States, or the President of the United States, with intent to defame
the said government, or either house of the said Congress, or the said
President, or to bring them, or either of them, into contempt or disrepute; or
to excite against them, or either or any of them, the hatred of the good people
of the United States, or to stir up sedition within the United States, or to
excite any unlawful combinations therein, for opposing or resisting any law of the United States, or any
act of the President of the United States, done in pursuance of any such law,
or of the powers in him vested by the constitution of the United States, or to
resist, oppose, or defeat any such law or act, or to aid, encourage or abet any
hostile designs of any foreign nation against the United States, their people
or government, then such person, being thereof convicted before any court of
the United States having jurisdiction thereof, shall be punished by a fine not
exceeding two thousand dollars, and by imprisonment not exceeding two years.’ 1
Stat. 596--597.
No substantial objection was raised to s 1
of the Act. The argument against the validity of s 2 is stated most fully in
the Virginia Report of 1799-- 1800. That Report, prepared for the House of
Delegates by a committee of which Madison was chairman, attempted to establish
that the power to regulate speech was not delegated to the Federal Government
by the Constitution, and that the First Amendment had prohibited the National
Government from exercising the power. In reply it was urged that power to
restrict seditious writing was implicit in the acknowledged power of the
Federal Government to prohibit seditious acts, and that the liberty of the
press did not extend to the sort of speech restricted by the Act. See the
Report of the Committee of the House of Representatives to which were referred memorials from the States,
H.R.Rep.No.110, 5th Cong., 3d Sess., published in
American State Papers, Misc. vol. 1, p. 181. For an extensive contemporary
account of the controversy, see St. George Tucker’s 1803 edition of
Blackstone’s Commentaries, appendix to vol. 1, part 2, note G.
*523 The
language of the First Amendment is to be read not as barren words found **874
in a dictionary but as symbols of historic experience illumined by the
presuppositions of those who employed them. Not what words did Madison and
Hamilton use, but what was it in their minds which they conveyed? Free speech
is subject to prohibition of those abuses of expression which a civilized
society may forbid. As in the case of every other provision of the Constitution
that is not crystallized by the nature of its technical concepts, the fact that
the First Amendment is not self-defining and self-enforcing neither impairs its
usefulness nor compels its paralysis as a living instrument.
*524 ‘The
law is perfectly well settled’, this Court said over fifty years ago, ‘that the
first 10 amendments to the Constitution, commonly known as the ‘Bill of
Rights,’ were not intended to lay down any novel principles of government, but
simply to embody certain guaranties and immunities which we had inherited from our English ancestors, and which
had from time immemorial, been subject to certain well-recognized exceptions,
arising from the necessities of the case. In incorporating these principles
into the fundamental law, there was no intention of disregarding the
exceptions, which continued to be recognized **875 as if they had been
formally expressed.’ Robertson v. Baldwin, 165 U.S. 275, 281, 17 S.Ct. 326, 329, 41 L.Ed. 715.
That this represents the authentic view of the Bill of Rights and the spirit in
which it must be construed has been recognized again and again in cases that
have come here within the last fifty years. See, e.g., Gompers
v. United States, 233 U.S. 604, 610, 34 S.Ct. 693,
695, 58 L.Ed. 1115. Absolute rules would inevitably
lead to absolute exceptions, and such exceptions would eventually corrode the
rules. [FN5] The demands of free speech in a
democratic society as well as the interest *525 in national security are
better served by candid and informed weighing of the competing interests,
within the confines of the judicial process, than by announcing dogmas too
inflexible for the non- Euclidian problems to be solved.
FN5.
Professor Alexander Meiklejohn is a leading exponent
of the absolutist interpretation of the First Amendment. Recognizing that
certain forms of speech require regulation, he excludes those forms of
expression entirely from the protection
accorded by the Amendment. ‘The constitutional status of a merchant advertising
his wares, of a paid lobbyist fighting for the advantage of his client, is
utterly different from that of a citizen who is planning for the general
welfare.’ Meiklejohn, Free Speech 39. ‘The radio as
it now operates among us is not free. Nor is it entitled to the protection of
the First Amendment. It is not engaged in the task of enlarging and enriching
human communication. It is engaged in making money.’ Id. at 104. Professor Meiklejohn even suggests that scholarship may now require
such subvention and control that it no longer is entitled to protection by the
First Amendment. See id. at 99--100. Professor Chafee in his review of the Meiklejohn book, 62 Harv.L.Rev.
891, has subjected this position to trenchant comment.
But how are competing interests to be assessed? Since they are not
subject to quantitative ascertainment, the issue necessarily resolves itself
into asking, who is to make the adjustment?--who is to balance the relevant
factors and ascertain which interest is in the circumstances to prevail? Full
responsibility for the choice cannot be given to the courts. Courts are not
representative bodies. They are not designed to be a good reflex of a
democratic society. Their judgment is best informed, and therefore most dependable, within narrow limits. Their
essential quality is detachment, founded on independence. History teaches that
the independence of the judiciary is jeopardized when courts become embroiled
in the passions of the day and assume primary responsibility in choosing
between competing political, economic and social pressures.
Primary responsibility for adjusting the interests which compete
in the situation before us of necessity belongs to the Congress. The nature of
the power to be exercised by this Court has been delineated in decisions not
charged with the emotional appeal of situations such as that now before us. We
are to set aside the judgment of those whose duty it is to legislate only if
there is no reasonable basis for it. In re Sinking-Fund Cases, 99 U.S. 700,
718, 25 L.Ed. 496; Mugler
v. State of Kansas, 123 U.S. 623, 660--661, 8 S.Ct.
273, 296, 297, 31 L.Ed. 205; United States v.
Carolene Products Co., 304 U.S. 144, 58 S.Ct. 778, 82
L.Ed. 1234. We are to determine whether a statute is
sufficiently definite to meet the constitutional requirements of due process,
and whether it respects the safeguards against undue concentration of authority
secured by separation of power. United States v. L. Cohen Grocery Co., 255 U.S.
81, 41 S.Ct. 298, 65 L.Ed.
516. *526 We must assure fairness of procedure, allowing full scope to
governmental discretion but mindful of its impact on individuals in the context
of the problem involved. Joint Anti- Fascist
Refugee Comm. v. McGrath, 341 U.S. 123, 71 S.Ct. 624.
And, of course, the proceedings in a particular case before us must have the
warrant of substantial proof. Beyond these powers we must not go; we must
scrupulously observe the narrow limits of judicial authority even though
self-restraint is alone set over us. Above all we must remember **876
that this Court’s power of judicial review is not ‘an exercise of the powers of
a super-Legislature’. Mr. Justice Brandeis and Mr. Justice Holmes, dissenting
in Jay Burns Baking Co. v. Bryan, 264 U.S. 504, 534, 44 S.Ct.
412, 421, 68 L.Ed. 813.
A generation ago this distribution of responsibility would not
have been questioned. See Fox v. State of Washington, 236 U.S. 273, 35 S.Ct. 383, 59 L.Ed. 573; Meyer v.
State of Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042; Bartels v. State of Iowa, 262 U.S. 404, 43 S.Ct. 628, 67 L.Ed. 1047; cf. New
York ex rel. Bryant v. Zimmerman, 278 U.S. 63, 49 S.Ct. 61, 73 L.Ed. 184. But in
recent decisions we have made explicit what has long been implicitly
recognized. In reviewing statutes which restrict freedoms protected by the
First Amendment, we have emphasized the close relation which those freedoms
bear to maintenance of a free society. See Kovacs v. Cooper, 336 U.S. 77, 89,
95, 69 S.Ct. 448, 454, 458, 93 L.Ed.
513 (concurring). Some members of the Court--and at times a majority--have done
more. They have suggested that our function in reviewing statutes restricting
freedom of expression differs sharply from
our normal duty in sitting in judgment on legislation. It has been said that
such statutes ‘must be justified by clear public interest, threatened not doubtedly or remotely, but by clear and present danger. The
rational connection between the remedy provided and the evil to be curbed,
which in other contexts might support legislation against attack on due process
grounds, will not suffice.’ Thomas v. Collins, 323 U.S. 516, 530, 65 S.Ct. 315, 322, 89 L.Ed. 430. It
has been suggested, with the casualness of a footnote, that such legislation is
not *527 presumptively valid, see United States v. Carolene Products
Co., 304 U.S. 144, 152, note 4, 58 S.Ct. 778, 783, 82
L.Ed. 1234, and it has been weightily reiterated that
freedom of speech has a ‘preferred position’ among constitutional safeguards.
Kovacs v. Cooper, 336 U.S. 77, 88, 69 S.Ct. 448, 454,
93 L.Ed. 513.
The precise meaning intended to be conveyed by these phrases need
not now be pursued. It is enough to note that they have recurred in the Court’s
opinions, and their cumulative force has, not without justification, engendered
belief that there is a constitutional principle, expressed by those attractive
but imprecise words, prohibiting restriction upon utterance unless it creates a
situation of ‘imminent’ peril against which legislation may guard. [FN6] It is on this body of the Court’s
pronouncements that the defendants’ argument here is based.
FN6.
In Hartzel v. United States, 322 U.S. 680, 687, 64 S.Ct. 1233, 1236, 88 L.Ed. 1534,
the Court reversed a conviction for wilfully causing
insubordination in the military forces on the ground that the intent required
by the statute was not shown. It added that there was a second element
necessary to conviction, ‘consisting of a clear and present danger that the
activities in question will bring about the substantive evils which Congress
has a right to prevent. Schenck v. United States, 249
U.S. 47, 39 S.Ct. 247, 63 L.Ed.
470. Both elements must be proved by the Government beyond a reasonable doubt.’
Other passages responsible for attributing
to the Court the principle that imminence of the apprehended evil is necessary
to conviction in free-speech cases are collected in an Appendix to this
opinion. 341 U.S. 556, 71 S.Ct. 891.
In all fairness, the argument cannot be met by reinterpreting the
Court’s frequent use of ‘clear’ and ‘present’ to mean an entertainable
‘probability.’ In giving this meaning to the phrase ‘clear and present danger,’
the Court of Appeals was fastidiously confining the rhetoric of opinions to the
exact scope of what was decided by them. We have greater responsibility for
having given constitutional support, over
repeated protests, to uncritical libertarian generalities.
*528 Nor is
the argument of the defendants adequately met by citing isolated cases.
Adjustment of clash of interests which are at once subtle and fundamental is
not likely to reveal entire consistency in a series **877 of instances
presenting the clash. It is not too difficult to find what one seeks in the
language of decisions reporting the effort to reconcile free speech with the
interests with which it conflicts. The case for the defendants requires that
their conviction be tested against the entire body of our relevant decisions.
Since the significance of every expression of thought derives from the
circumstances evoking it, results reached rather than language employed give
the vital meaning. See Cohens v. Com. of Virginia, 6
Wheat. 264, 442, 5 L.Ed. 257; Wambaugh,
The Study of Cases 10.
There is an added reason why we must turn to the decisions. ‘Great
cases,’ it is appropriate to remember, ‘like hard cases make bad law. For great
cases are called great, not by reason of their real importance in shaping the
law of the future, but because of some accident of immediate overwhelming
interest which appeals to the feelings and distorts the judgment. These
immediate interests exercise a kind of hydraulic pressure which makes what
previously was clear seem doubtful, and before which even well settled
principles of law will bend.’ Mr. Justice
Holmes, dissenting in Northern Securities Co. v. United States, 193 U.S. 197,
400--401, 24 S.Ct. 436, 468, 48 L.Ed.
679.
This is such a case. Unless we are to compromise judicial
impartiality and subject these defendants to the risk of an ad hoc judgment
influenced by the impregnating atmosphere of the times, the constitutionality
of their conviction must be determined by principles established in cases
decided in more tranquil periods. If those decisions are to be used as a guide
and not as an argument, it is important to view them as a whole and to distrust
the easy generalizations to which some of them lend themselves.
*529 II.
We have recognized and resolved conflicts between speech and
competing interests in six different types of cases. [FN7]
FN7.
No useful purpose would be served by considering here decisions in which the
Court treated the challenged regulation as though it imposed no real restraint
on speech or on the press. E.g., Associated Press v. National Labor Relations
Board, 301 U.S. 103, 57 S.Ct. 650, 81 L.Ed. 953; Valentine v. Chrestensen,
316 U.S. 52, 62 S.Ct. 920, 86 L.Ed.
1262; Railway Express Agency v. People of State of New York, 336 U.S. 106, 69 S.Ct. 463, 93 L.Ed. 533; Lewis
Publishing Co. v. Morgan, 229 U.S. 288, 33 S.Ct. 867, 57 L.Ed. 1190. We
recognized that restrictions on speech were involved in United States ex rel. Milwaukee Publishing Co. v. Burleson, 255 U.S. 407, 41
S.Ct. 352, 65 L.Ed. 704,
and Gilbert v. State of Minnesota, 254 U.S. 325, 41 S.Ct.
125, 65 L.Ed. 287; but the decisions raised issues so
different from those presented here that they too need not be considered in
detail. Our decisions in Stromberg v. People of State of California, 283 U.S.
359, 51 S.Ct. 532, 75 L.Ed.
1117, and Winters v. People of State of New York, 333 U.S. 507, 68 S.Ct. 665, 92 L.Ed. 840, turned
on the indefiniteness of the statutes.
1. The cases involving a conflict between the interest in allowing
free expression of ideas in public places and the interest in protection of the
public peace and the primary uses of streets and parks, were too recently
considered to be rehearsed here. Niemotko v. State of
Maryland, 340 U.S. 268, 273, 71 S.Ct. 325, 327. It
suffices to recall that the result in each case was found to turn on the character
of the interest with which the speech clashed, the method used to impose the
restriction, and the nature and circumstances of the utterance prohibited.
While the decisions recognized the importance of free speech and carefully
scrutinized the justification for its regulation, they rejected the notion that
vindication of the deep public interest in
freedom of expression requires subordination of all conflicting values.
2. A critique of the cases testing restrictions on picketing is
made more difficult by the inadequate recognition by the Court from the outset
that the loyalties and responses evoked and exacted by picket lines
differentiate this form of expression **878 from other modes of
communication. See Thornhill v. State of Alabama, 310
U.S. 88, 60 S.Ct. 736, 84 L.Ed.
1093. But the *530 crux of the decision in the Thornhill
case was that a State could not constitutionally punish peaceful picketing when
neither the aim of the picketing nor the manner in which it was carried out
conflicted with a substantial interest. In subsequent decisions we sustained
restrictions designed to prevent recurrence of violence, Milk Wagon Drivers
Union v. Meadowmoor Dairies, 312 U.S. 287, 61 S.Ct. 552, 85 L.Ed. 836, or
reasonably to limit the area of industrial strife, Carpenters & Joiners
Union v. Ritter’s Cafe, 315 U.S. 722, 62 S.Ct. 807,
86 L.Ed. 1143; cf. Bakery & Pastry Drivers Local
v. Wohl, 315 U.S. 769, 62 S.Ct.
816, 86 L.Ed. 1178. We held that a State’s policy
against restraints of trade justified it in prohibiting picketing which
violated that policy, Giboney v. Empire Storage Co.,
336 U.S. 490, 69 S.Ct. 684, 93 L.Ed.
834; we sustained restrictions designed to encourage self-employed persons,
International Brotherhood of Teamsters Union
v. Hanke, 339 U.S. 470, 70 S.Ct.
773, 94 L.Ed. 995; and to prevent racial
discrimination, Hughes v. Superior Court, 339 U.S. 460, 70 S.Ct.
718, 94 L.Ed. 985. The Fourteenth Amendment bars a
State from prohibiting picketing when there is no fair justification for the
breadth of the restriction imposed. American Federation of Labor v. Swing, 312
U.S. 321, 61 S.Ct. 568, 85 L.Ed.
855; Cafeteria Employees Union v. Angelos, 320 U.S.
293, 64 S.Ct. 126, 88 L.Ed.
58. But it does not prevent a State from denying the means of communication that
picketing affords in a fair balance between the interests of trade unionism and
other interests of the community.
3. In three cases we have considered the scope and application of
the power of the Government to exclude, deport, or denaturalize aliens because
of their advocacy or their beliefs. In United States ex rel.
Turner v. Williams, 194 U.S. 279, 24 S.Ct. 719, 48 L.Ed. 979, we held that the First Amendment did not disable
Congress from directing the exclusion of an alien found in an administrative proceeding
to be an anarchist. ‘(A)s long as human governments endure’, we said, ‘They
cannot be denied the power of self-preservation, as that question is presented
here.’ *531 194 U.S. at page 294, 24 S.Ct. at
page 724, 48 L.Ed. 979. In Schneiderman
v. United States, 320 U.S. 118, 63 S.Ct. 1333, 87 L.Ed. 1796, and Bridges v. Wixon,
326 U.S. 135, 65 S.Ct. 1443, 89 L.Ed.
2103, we did not consider the extent of the power of Congress. In each case, by a closely divided Court, we
interpreted a statute authorizing denaturalization or deportation to impose on
the Government the strictest standards of proof.
4. History regards ‘freedom of the press’ as indispensable for a
free society and for its government. We have, therefore, invalidated
discriminatory taxation against the press and prior restraints on publication
of defamatory matter. Grosjean v. American Press Co.,
297 U.S. 233, 56 S.Ct. 444, 80 L.Ed.
660; Near v. State of Minnesota, 283 U.S. 697, 51 S.Ct.
625, 75 L.Ed. 1357.
We have also given clear indication of the importance we attach to
dissemination of ideas in reviewing the attempts of States to reconcile freedom
of the press with protection of the integrity of the judicial process. In Pennekamp v. State of Florida, 328 U.S. 331, 66 S.Ct. 1029, 90 L.Ed. 1295, the
Court agreed that the Fourteenth Amendment barred a State from adjudging in
contempt of court the publisher of critical and inaccurate comment about
portions of a litigation that for all practical purposes were no longer
pending. We likewise agreed, in a minor phase of our decision in Bridges v.
State of California, 314 U.S. 252, 62 S.Ct. 190, 86 L.Ed. 192, that even when statements in the press relate to
matters still pending before a court, convictions for their publication cannot
be sustained if their utterance is too trivial
to be deemed a substantial threat to the impartial administration of justice
The Court has, however, sharply divided on what constitutes a
sufficient interference **879 with the course of justice. In the first
decision, Patterson v. State of Colorado, 205 U.S. 454, 27 S.Ct.
556, 51 L.Ed. 879, the Court affirmed a judgment for
contempt imposed by a State supreme court for publication of articles
reflecting on the conduct of the court in cases still before it on *532
motions for rehearing. In the Bridges case, however, a majority held that a
State court could not protect itself from the implied threat of a powerful
newspaper that failure of an elected judge to impose a severe sentence would be
a ‘serious mistake.’ The same case also placed beyond a State’s power to punish
the publication of a telegram from the president of an important union who
threatened a damaging strike in the event of an adverse decision. The majority
in Craig v. Harney, 331 U.S. 367, 376, 67 S.Ct. 1249,
1255, 91 L.Ed. 1546, held that the Fourteenth
Amendment protected ‘strong,’ ‘intemperate,’ ‘unfair’ criticism of the way an
elected law judge was conducting a pending civil case. None of the cases
establishes that the public interest in a free press must in all instances
prevail over the public interest in dispassionate adjudication. But the Bridges
and Craig decisions, if they survive, tend to require a showing that
interference be so imminent and so demonstrable
that the power theoretically possessed by the State is largely paralyzed.
5. Our decision in American Communications Ass’n
v. Douds, 339 U.S. 382, 70 S.Ct.
674, 94 L.Ed. 925, recognized that the exercise of
political rights protected by the First Amendment was necessarily discouraged
by the requirement of the Taft-Hartley Act that officers of unions employing
the services of the National Labor Relations Board sign affidavits that they
are not Communists. But we held that the statute was not for this reason
presumptively invalid. The problem, we said, was ‘one of weighing the probable
effects of the statute upon the free exercise of the right of speech and
assembly against the congressional determination that political strikes are
evils of conduct which cause substantial harm to interstate commerce and that
Communists and others identified by s 9(h) pose continuing threats to that
public interest when in positions of union leadership.’ *533 339 U.S. at
page 400, 70 S.Ct. at page 684, 94 L.Ed. 925. On balance, we decided that the legislative
judgment was a permissible one. [FN8]
FN8.
The Taft-Hartley Act also requires that an officer of a union using the
services of the National Labor Relations Board take oath that he ‘does not
believe in, and is not a member of or supports any organization that believes in or teaches, the overthrow of
the United States Government by force or by any illegal or unconstitutional
methods.’ The Court divided on the validity of this requirement. Test oaths
raise such special problems that decisions on their validity are not directly
helpful here. See West Virginia State Board of Education v. Barnette,
319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed.
1628.
6. Statutes prohibiting speech because of its tendency to lead to
crime present a conflict of interests which bears directly on the problem now
before us. The first case in which we considered this conflict was Fox v.
Washington, supra. The statute there challenged had been interpreted to
prohibit publication of matter ‘encouraging an actual breach of law.’ We held
that the Fourteenth Amendment did not prohibit application of the statute to an
article which we concluded incited a breach of laws against indecent exposure.
We said that the statute ‘lays hold of encouragements that, apart from statute,
if directed to a particular person’s conduct, generally would make him who
uttered them guilty of a misdemeanor if not an accomplice or a principal in the
crime encouraged, and deals with the publication of them to a wider and less
selected audience.’ 236 U.S. at pages 277--278, 35 S.Ct.
at page 384, 59 L.Ed. 573. To be sure, the Fox case
preceded the explicit absorption of the substance
of the First Amendment in the Fourteenth. But subsequent decisions extended the
Fox principle to free-speech situations. They are so important to the problem
before us that we must consider them in detail.
**880 (a)
The first important application of the principle was made in six cases arising
under the Espionage Act of 1917. That Act prohibits conspiracies and attempts *534
to ‘obstruct the recruiting or enlistment service’. In each of the first three
cases Mr. Justice Holmes wrote for a unanimous Court, affirming the
convictions. The evidence in Schenck v. United
States, 249 U.S. 47, 39 S.Ct. 247, 63 L.Ed. 470, showed that the defendant had conspired to
circulate among men called for the draft 15,000 copies of a circular which
asserted a ‘right’ to oppose the draft. The defendant in Frohwerk
v. United States, 249 U.S. 204, 39 S.Ct. 249, 63 L.Ed. 561, was shown to have conspired to publish in a
newspaper twelve articles describing the sufferings of American troops and the
futility of our war aims. The record was inadequate, and we said that it was
therefore ‘impossible to say that it might not have been found that the
circulation of the paper was in quarters where a little breath would be enough
to kindle a flame and that the fact was known and relied upon by those who sent
the paper out.’ 249 U.S. at page 209, 39 S.Ct. at
page 251, 63 L.Ed. 561. In Debs v. United States, 249
U.S. 211, 39 S.Ct. 251, 63 L.Ed.
566, the indictment charged that the defendant had delivered a public speech expounding socialism and praising
Socialists who had been convicted of abetting violation of the draft laws.
The ground of decision in each case was the same. The First
Amendment ‘cannot have been, and obviously was not, intended to give immunity
for every possible use of language. Robertson v. Baldwin, 165 U.S. 275, 281, 17
S.Ct. 326, 41 L.Ed. 715.’ Frohwerk v. United States, supra, 249 U.S. at page 206, 39 S.Ct. at page 250, 63 L.Ed. 561.
‘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. It is a question of proximity and degree.’ Schenck
v. United States, supra, 249 U.S. at page 52, 39 S.Ct.
at page 249, 63 L.Ed. 470. When ‘the words used had
as their natural tendency and reasonably probable effect to obstruct the
recruiting service,’ and ‘the defendant had the specific intent to do so in his
mind’, conviction in wartime is not prohibited by the Constitution. Debs v.
United States, supra, 249 U.S. at page 216, 39 S.Ct.
at page 254, 63 L.Ed. 566.
*535 In the
three succeeding cases Holmes and Brandeis, JJ., dissented from judgments of
the Court affirming convictions. The indictment in Abrams v. United States, 250
U.S. 616, 40 S.Ct. 17, 63 L.Ed.
1173, was laid under an amendment to the Espionage Act which prohibited
conspiracies to advocate curtailment of
production of material necessary to prosecution of the war, with the intent
thereby to hinder the United States in the prosecution of the war. It appeared
that the defendants were anarchists who had printed circulars and distributed
them in New York City. The leaflets repeated standard Marxist slogans,
condemned American intervention in Russia, and called for a general strike in
protest. In Schaefer v. United States, 251 U.S. 466, 40 S.Ct.
259, 64 L.Ed. 360, the editors of a German language
newspaper in Philadelphia were charged with obstructing the recruiting service
and with wilfully publishing false reports with the
intent to promote the success of the enemies of the United States. The evidence
showed publication of articles which accused American troops of weakness and
mendacity and in one instance misquoted or mistranslated two words of a
Senator’s speech. The indictment in Pierce v. United States, 252 U.S. 239, 40 S.Ct. 205, 64 L.Ed. 542, charged
that the defendants had attempted to cause insubordination in the armed forces
and had conveyed false reports with intent to interfere with military
operations. Conviction was based on circulation of a pamphlet which belittled
Allied war aims and criticized conscription in strong terms.
In each case both the majority and the dissenting opinions relied
on Schenck v. United States. The Court divided on its
view of the evidence. The majority held **881 that the jury could infer
the required intent and the probable effect
of the articles from their content. Holmes and Brandeis, JJ., thought that only
‘expressions of opinion and exhortations,’ 250 U.S. at 631, 40 S.Ct. at page 22, 63 L.Ed. 1173,
were involved, that they were ‘puny anonymities,’ 250 U.S. at page 629, 40 S.Ct. at page 21, ‘impotent to produce the evil against which
the statute aimed’, 251 *536 U.S. 493, 40 S.Ct.
268, 64 L.Ed. 360, and that from them the specific
intent required by the statute could not reasonably be inferred. The Court
agreed that an incitement to disobey the draft statute could constitutionally be
punished. It disagreed over the proof required to show such an incitement.
(b) In the eyes of a majority of the Court, Gitlow
v. People of State of New York, 268 U.S. 652, 45 S.Ct.
625, 69 L.Ed. 1138, presented a very different
problem. There the defendant had been convicted under a New York statute nearly
identical with the Smith Act now before us. The evidence showed that the
defendant was an official of the Left Wing Section of the Socialist Party, and
that he was responsible for publication of a Left Wing Manifesto. This document
repudiated ‘moderate Socialism,’ and urged the necessity of a militant
‘revolutionary Socialism,’ based on class struggle and revolutionary mass
action. No evidence of the effect of the Manifesto was introduced; but the jury
were instructed that they could not convict unless they found that the document
advocated employing unlawful acts for the purpose of overthrowing organized government.
The conviction was affirmed. The question, the Court held, was
entirely different from that involved in Schenck v.
United States, where the statute prohibited acts without reference to language.
Here, where ‘the legislative body has determined generally, in the
constitutional exercise of its discretion, that utterances of a certain kind
involve such danger of substantive evil that they may be punished, the question
whether any specific utterance coming within the prohibited class is likely, in
and of itself, to bring about the substantive evil, is not open to
consideration.’ 268 U.S. at page 670, 45 S.Ct. at
page 631, 69 L.Ed. 1138. It is sufficient that the
defendant’s conduct falls within the statute, and that the statute is a
reasonable exercise of legislative judgment.
This principle was also applied in Whitney v. People of State of
California, 274 U.S. 357, 47 S.Ct. 641, 71 L.Ed. 1095, to sustain a conviction under a State criminal
syndicalism statute. That statute made it a *537 felony to assist in
organizing a group assembled to advocate the commission of crime, sabotage, or
unlawful acts of violence as a means of effecting political or industrial
change. The defendant was found to have assisted in organizing the Communist
Labor Party of California, an organization found to have the specified
character. It was held that the legislature was not
unreasonable in believing organization of such a party ‘involves such danger to
the public peace and the security of the State, that these acts should be
penalized in the exercise of its police power.’ 274 U.S. at page 371, 47 S.Ct. at page 647, 71 L.Ed. 1095.
In neither of these cases did Mr. Justice Holmes and Mr. Justice
Brandeis accept the reasoning of the Court. “The question,” they said, quoting
from Schenck v. United States, “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 (the State) has a right to prevent.” 268 U.S. at pages
672--673, 45 S.Ct. at page 632, 69 L.Ed. 1138. Since the Manifesto circulated by Gitlow ‘had no chance of starting a present conflagration’,
268 U.S. at page 673, 45 S.Ct. at page 632, they
dissented from the affirmance of his conviction. In
Whitney v. People of State of California, they concurred in the result reached
by the Court, but only because the record contained some evidence that
organization of the Communist Labor Party might further a conspiracy to commit
immediate serious crimes, **882 and the credibility of the evidence was
not put in issue by the defendant. [FN9]
FN9.
Burns v. United States, 274 U.S. 328, 47 S.Ct. 650,
71 L.Ed. 1077,
adds nothing to the decision in Whitney v. People of State of California.
(c) Subsequent decisions have added little to the principles
established in these two groups of cases. In the only case arising under the
Espionage Act decided by this Court during the last war, the substantiality of
the evidence was the crucial issue. The defendant in Hartzel
*538 v. United States, 322 U.S. 680, 64 S.Ct.
1233, 88 L.Ed. 1534, was an educated man and a citizen,
not actively affiliated with any political group. In 1942 he wrote three
articles condemning our wartime allies and urging that the war be converted
into a racial conflict. He mailed the tracts to 600 people, including high-
ranking military officers. According to his testimony his intention was to
‘create sentiment against war amongst the white races’. (322 U.S. 680, 64 S.Ct. 1236.) The majority of this Court held that a jury
could not reasonably infer from these facts that the defendant had acted with a
specific intent to cause insubordination or disloyalty in the armed forces.
Of greater importance is the fact that the issue of law which
divided the Court in the Gitlow and Whitney cases has
not again been clearly raised, although in four additional instances we have
reviewed convictions under comparable statutes. Fiske
v. State of Kansas, 274 U.S. 380, 47 S.Ct. 655, 71 L.Ed. 1108,
involved a criminal syndicalism statute similar to that before us in Whitney v.
People of State of California. We reversed a conviction based on evidence that
the defendant exhibited an innocuous preamble to the constitution of the
Industrial Workers of the World in soliciting members for that organization. In
Herndon v. Lowry, 301 U.S. 242, 57 S.Ct. 732, 81 L.Ed. 1066, the defendant had solicited members for the
Communist Party, but there was no proof that he had urged or even approved
those of the Party’s aims which were unlawful. We reversed a conviction
obtained under a statute prohibiting an attempt to incite to insurrection by
violence, on the ground that the Fourteenth Amendment prohibited conviction
where on the evidence a jury could not reasonably infer that the defendant had
violated the statute the State sought to apply.
[FN10]
FN10.
In Herndon v. State of Georgia, 295 U.S. 441, 55 S.Ct.
794, 79 L.Ed. 1530, the opinion of the Court was
concerned solely with a question of procedure. Mr. Justice Brandeis, Mr.
Justice Stone, and Mr. Justice Cardozo, however,
thought that the problem of Gitlow v. People of State
of New York was raised. See 295 U.S. at page 446, 55 S.Ct.
at page 796, 79 L.Ed. 1530.
*539 The
other two decisions go no further than to hold that the statute as construed by
the State courts exceeded the bounds of a legislative judgment founded in
reason. The statute presented in De Jonge v. State of
Oregon, 299 U.S. 353, 57 S.Ct. 255, 81 L.Ed. 278, had been construed to apply to anyone who merely
assisted in the conduct of a meeting held under the auspices of the Communist
Party. In Taylor v. State of Mississippi, 319 U.S. 583, 63 S.Ct.
1200. 1201, 87 L.Ed. 1600, the statute prohibited
dissemination of printed matter ‘designed and calculated to encourage violence,
sabotage, or disloyalty to the government of the United States, or the state of
Mississippi’. We reversed a conviction for what we concluded was mere criticism
and prophesy, without indicating whether we thought the statute could in any
circumstances validly be applied. What the defendants communicated, we said,
‘is not claimed or shown to have been done with an evil or sinister purpose, to
have advocated or incited subversive action against the nation or state, or to
have threatened any clear and present danger to our institutions or our
Government.’ 319 U.S. at pages 589--590, 63 S.Ct. at
pages 1201, 1204.
I must leave to others the ungrateful task of trying to reconcile
all these decisions. In some instances we have too readily permitted juries to
infer deception from error, or intention from argumentative or critical
statements. Abrams v. United States, supra; **883 Schaefer v. United
States, supra; Pierce v. United States,
supra; Gilbert v. State of Minnesota, 254 U.S. 325, 41 S.Ct.
125, 65 L.Ed. 287. In other instances we weighted the
interest in free speech so heavily that we permitted essential conflicting
values to be destroyed. Bridges v. State of California, supra; Craig v. Harney,
supra. Viewed as a whole, however, the decisions express an attitude toward the
judicial function and a standard of values which for me are decisive of the
case before us.
First.--Free-speech cases are not an exception to the principle
that we are not legislators, that direct policy-making is not our province. How
best to reconcile competing *540 interests is the business of
legislatures, and the balance they strike is a judgment not to be displaced by
ours, but to be respected unless outside the pale of fair judgment.
On occasion we have strained to interpret legislation in order to
limit its effect on interests protected by the First Amendment. Schneiderman v. United States, supra; Bridges v. Wixon, supra. In some instances we have denied to States
the deference to which I think they are entitled. Bridges v. State of
California, supra; Craig v. Harney, supra. Once in this recent course of
decisions the Court refused to permit a jury to draw inferences which seemed to
me to be obviously reasonable. Hartzel v. United
States, supra.
But in no case has a majority of this Court held that a
legislative judgment, even as to freedom of
utterance, may be overturned merely because the Court would have made a
different choice between the competing interests had the initial legislative
judgment been for it to make. In the cases in which the opinions go farthest
towards indicating a total rejection of respect for legislative determinations,
the interests between which choice was actually made were such that decision
might well have been expressed in the familiar terms of want of reason in the
legislative judgment. In Thomas v. Collins, 323 U.S. 516, 65 S.Ct. 315, 89 L.Ed. 430, for
example, decision could not unreasonably have been placed on the ground that no
substantial interest justified a State in requiring an out-of-State labor
leader to register before speaking in advocacy of the cause of trade unionism.
In Martin v. City of Struthers, 319 U.S. 141, 63 S.Ct.
862, 87 L.Ed. 1313, it was broadly held that a
municipality was not justified in prohibiting knocking on doors and ringing
doorbells for the purpose of delivering handbills. But since the good faith and
reasonableness of the regulation were placed in doubt by the fact that the city
did not think it necessary also to prohibit door-to-door commercial *541
sales, decision could be sustained on narrower ground. And compare Breard v. City of Alexandria, 341 U.S. 622, 71 S.Ct. 920.
In other cases, moreover, we have given clear indication that even
when free speech is involved we attach great significance to the determination
of the legislature. Gitlow
v. People of State of New York, supra; Whitney v. People of State of
California, supra; American Communications Ass’n v. Douds, supra; cf. Bridges v. State of California, 314 U.S.
at page 260, 62 S.Ct. at page 192, 86 L.Ed. 192. And see Hughes v. Superior Court, supra;
International Brotherhood of Teamsters Union v. Hanke,
supra.
In Gitlow v. People of State of New
York, we put our respect for the legislative judgment in terms which, if they
were accepted here, would make decision easy. For that case held that, when the
legislature has determined that advocacy of forceful overthrow should be forbidden,
a conviction may be sustained without a finding that in the particular case the
advocacy had a close relation to a serious attempt at overthrow. We held that
it was enough that the statute be a reasonable exercise of the legislative
judgment, and that the defendant’s conduct fall within the statute.
One of the judges below rested his affirmance
on the Gitlow decision, and the defendants do not
attempt to distinguish the case. They place their argument squarely on the
ground that the case has been overruled by subsequent decisions. It **884
has not been explicitly overruled. But it would be disingenuous to deny that
the dissent in Gitlow has been treated with the
respect usually accorded to a decision.
The result of the Gitlow decision was to
send a left-wing Socialist to jail for
publishing a Manifesto expressing Marxist exhortations. It requires excessive
tolerance of the legislative judgment to suppose that the Gitlow
publication in the circumstances could justify serious concern.
*542 In
contrast, there is ample justification for a legislative judgment that the
conspiracy now before us is a substantial threat to national order and
security. If the Smith Act is justified at all, it is justified precisely
because it may serve to prohibit the type of conspiracy for which these
defendants were convicted. The court below properly held that as a matter of separability the Smith Act may be limited to those
situations to which it can constitutionally be applied. See 183 F.2d at pages
214--215. Our decision today certainly does not mean that the Smith Act can
constitutionally be applied to facts like those in Gitlow
v. People of State of New York. While reliance may properly be placed on the
attitude of judicial self-restraint which the Gitlow
decision reflects, it is not necessary to depend on the facts or the full
extent of the theory of that case in order to find that the judgment of
Congress, as applied to the facts of the case now before us, is not in conflict
with the First Amendment.
Second.--A survey of the relevant decisions indicates that the
results which we have reached are on the whole those that would ensue from
careful weighing of conflicting interests. The complex issues presented by
regulation of speech in public places, by
picketing, and by legislation prohibiting advocacy of crime have been resolved
by scrutiny of many factors besides the imminence and gravity of the evil
threatened. The matter has been well summarized by a reflective student of the
Court’s work. ‘The truth is that the clear-and- present-danger test is an
oversimplified judgment unless it takes account also of a number of other
factors: the relative seriousness of the danger in comparison with the value of
the occasion for speech or political activity; the availability of more
moderate controls than those which the state has imposed; and perhaps the
specific intent with which the speech or activity is launched. No matter how
rapidly we utter the phrase ‘clear and present danger,’ or how *543
closely we hyphenate the words, they are not a substitute for the weighing of
values. They tend to convey a delusion of certitude when what is most certain
is the complexity of the strands in the web of freedoms which the judge must
disentangle.’ Freund, On Understanding the Supreme Court 27--28.
It is a familiar experience in the law that new situations do not
fit neatly into legal conceptions that arose under different circumstances to
satisfy different needs. So it was when the injunction was tortured into an
instrument of oppression against labor in industrial conflicts. So it is with
the attempt to use the direction of thought lying behind the criterion of
‘clear and present danger’ wholly out of the context in which it originated,
and to make of it an absolute dogma and
definitive measuring rod for the power of Congress to deal with assaults
against security through devices other than overt physical attempts.
Bearing in mind that Mr. Justice Holmes regarded questions under
the First Amendment as questions of ‘proximity and degree’, Schenck
v. United States, 249 U.S. at page 52, 39 S.Ct. at
page 249, 63 L.Ed. 470, it would be a distortion,
indeed a mockery, of his reasoning to compare the ‘puny anonymities,’ 250 U.S.
at page 629, 40 S.Ct. at page 17, 63 L.Ed. 1173, to which he was addressing himself in the
Abrams case in 1919 or the publication that was ‘futile and too remote from
possible consequences’, 268 U.S. at 673, 45 S.Ct. at
page 632, 69 L.Ed. 1138, in the Gitlow
case in 1925 with the setting of events in this case in 1950.
‘It does an ill-service to the author of the most quoted judicial
phrases regarding freedom of speech, to make him the victim of a tendency which
he fought all his life, whereby phrases are made to do service for **885
critical analysis by being turned into dogma. ‘It is one of the misfortunes of
the law that ideas become encysted in phrases and thereafter for a long time
cease to provoke further analysis.’ Holmes, J., dissenting, in Hyde v. United *544
States, 225 U.S. 347, 384, at page 391, 32 S.Ct. 793,
at page 811, 56 L.Ed. 1114.’ The phrase ‘clear and
present danger’, in its origin, ‘served to
indicate the importance of freedom of speech to a free society but also to
emphasize that its exercise must be compatible with the preservation of other
freedoms essential to a democracy and guaranteed by our Constitution.’ Pennekamp v. State of Florida, 328 U.S. 331, 350, 352--353,
66 S.Ct. 1029, 1040, 90 L.Ed.
1295 (concurring). It were far better that the phrase be abandoned than that it
be sounded once more to hide from the believers in an absolute right of free
speech the plain fact that the interest in speech, profoundly important as it
is, is no more conclusive in judicial review than other attributes of democracy
or than a determination of the people’s representatives that a measure is
necessary to assure the safety of government itself.
Third.--Not every type of speech occupies the same position on the
scale of values. There is no substantial public interest in permitting certain
kinds of utterances: ‘the lewd and obscene, the profane, the libelous, and the
insulting or ‘fighting’ words--those which by their very utterance inflict
injury or tend to incite an immediate breach of the peace.’ Chaplinsky
v. State of New Hampshire, 315 U.S. 568, 572, 62 S.Ct.
766, 769, 86 L.Ed. 1031. We have frequently indicated
that the interest in protecting speech depends on the circumstances of the
occasion. See cases collected in Niemotko v. State of
Maryland, 340 U.S. at pages 275--283, 71 S.Ct. at
pages 329, 333. It is pertinent to the
decision before us to consider where on the scale of values we have in the past
placed the type of speech now claiming constitutional immunity.
The defendants have been convicted of conspiring to organize a
party of persons who advocate the overthrow of the Government by force and
violence. The jury has found that the object of the conspiracy is advocacy as
‘a rule or principle of action,’ ‘by language reasonably and ordinarily
calculated to incite persons to such action,’ *545 and with the intent
to cause the overthrow ‘as speedily as circumstances would permit.’
On any scale of values which we have hitherto recognized, speech
of this sort ranks low.
Throughout our decisions there has recurred a distinction between
the statement of an idea which may prompt its hearers to take unlawful action,
and advocacy that such action be taken. The distinction has its root in the
conception of the common law, supported by principles of morality, that a
person who procures another to do an act is responsible for that act as though
he had done it himself. This principle was extended in Fox v. State of
Washington, supra, to words directed to the public generally which would
constitute an incitement were they directed to an individual. It was adapted in
Schenck v. United States, supra, into a rule of
evidence designed to restrict application of
the Espionage Act. It was relied on by the Court in Gitlow
v. People of State of New York, supra. The distinction has been repeated in
many of the decisions in which we have upheld the claims of speech. We
frequently have distinguished protected forms of expression from statements
which ‘incite to violence and crime and threaten the overthrow of organized
government by unlawful means.’ Stromberg v. People of State of California, 283
U.S. at 369, 51 S.Ct. at page 535, 75 L.Ed. 1117. See also Near v. State of Minnesota, 283 U.S.
at 716, 51 S.Ct. at page 631, 75 L.Ed.
1357; De Jonge v. State of Oregon, 299 U.S. at 365,
57 S.Ct. at page 260, 81 L.Ed.
278; Cantwell v. State of Connecticut, 310 U.S. 296, 308, 60 S.Ct. 900, 905, 84 L.Ed. 1213;
Taylor v. State of Mississippi, 319 U.S. at 589, 63 S.Ct.
at 1203, 87 L.Ed. 1600.
It is true that there is no divining rod by which we may locate
‘advocacy.’ Exposition of ideas readily merges into advocacy. The same Justice
who gave currency to application of the incitement doctrine in **886
this field dissented four times from what he thought was its misapplication. As
he said in the Gitlow dissent, ‘Every idea is an
incitement.’ 268 U.S. at 673, 45 S.Ct. at page 632,
69 L.Ed. 1138. Even though advocacy of overthrow
deserves little protection, we should hesitate to prohibit it if we thereby
inhibit the *546 interchange of rational ideas so essential to
representative government and free society.
But there is underlying validity in the distinction between
advocacy and the interchange of ideas, and we do not discard a useful tool
because it may be misused. That such a distinction could be used unreasonably
by those in power against hostile or unorthodox views does not negate the fact
that it may be used reasonably against an organization wielding the power of
the centrally controlled international Communist movement. The object of the
conspiracy before us is so clear that the chance of error in saying that the
defendants conspired to advocate rather than to express ideas is slight. Mr.
Justice DOUGLAS quite properly points out that the conspiracy before us is not
a conspiracy to overthrow the Government. But it would be equally wrong to
treat it as a seminar in political theory.
III.
These general considerations underlie decision of the case before
us.
On the one hand is the interest in security. The Communist Party
was not designed by these defendants as an ordinary political party. For the
circumstances of its organization, its aims and methods, and the relation of
the defendants to its organization and aims we are concluded by the jury’s
verdict. The jury found that the Party rejects the basic premise of our
political system--that change is to be brought about by nonviolent constitutional process. The jury found that the
Party advocates the theory that there is a duty and necessity to overthrow the
Government by force and violence. It found that the Party entertains and
promotes this view, not as a prophetic insight or as a bit of unworldly
speculation, *547 but as a program for winning adherents and as a policy
to be translated into action.
In finding that the defendants violated the statute, we may not
treat as established fact that the Communist Party in this country is of
significant size, well-organized, well-disciplined, conditioned to embark on
unlawful activity when given the command. But in determining whether
application of the statute to the defendants is within the constitutional
powers of Congress, we are not limited to the facts found by the jury. We must
view such a question in the light of whatever is relevant to a legislative
judgment. We may take judicial notice that the Communist doctrines which these
defendants have conspired to advocate are in the ascendency
in powerful nations who cannot be acquitted of unfriendliness to the
institutions of this country. We may take account of evidence brought forward
at this trial and elsewhere, must of which has long been common knowledge. In
sum, it would amply justify a legislature in concluding that recruitment of
additional members for the Party would create a substantial danger to national
security.
In 1947, it has been reliably reported, at least 60,000 members
were enrolled in the Party. [FN11] Evidence was introduced in this case
that the membership was organized in small units, linked by an intricate chain
of command, and protected by elaborate precautions designed to prevent
disclosure of individual identity. There are no reliable data tracing acts of
sabotage or espionage directly to these defendants. But a Canadian Royal
Commission appointed in 1946 to investigate espionage reported that it was
‘overwhelmingly established’ that *548 ‘the Communist movement was the
principal base within which the espionage network **887 was recruited.’ [FN12] The most notorious spy in recent
history was led into the service of the Soviet Union through Communist
indoctrination. [FN13] Evidence supports the
conclusion that members of the Party seek and occupy positions of importance in
political and labor organizations. [FN14]
Congress was not barred by the Constitution from believing that indifference to
such experience would be an exercise not of freedom but of irresponsibility.
FN11.
See the testimony of the Director of the Federal Bureau of Investigation.
Hearings before the House Committee on Un-American Activities, on H.R.1884 and
H.R.2122, 80th Cong., 1st Sess., Part 2, p. 37.
FN12.
Report of the Royal Commission to Investigate Communication of Secret and Confidential Information to Agents
of a Foreign Power, June 27, 1946, p. 44. There appears to be little reliable
evidence demonstrating directly that the Communist Party in this country has
recruited persons willing to engage in espionage or other unlawful activity on
behalf of the Soviet Union. The defection of a Soviet diplomatic employee,
however, led to a careful investigation of an espionage network in Canada, and
has disclosed the effectiveness of the Canadian Communist Party in conditioning
its members to disclose to Soviet agents vital information of a secret
character. According to the Report of the Royal Commission investigating the
network, conspiratorial characteristics of the Party similar to those shown in
the evidence now before us were instrumental in developing the necessary
motivation to cooperate in the espionage. See pp. 43--83 of the Report.
FN13.
The Communist background of Dr. Klaus Fuchs was brought out in the proceedings
against him. See The (London) Times, Mar. 2, 1950, p. 2, col. 6.
FN14.
See American Communications Ass’n v. Douds, 339 U.S. 382, 70 S.Ct.
674, 94 L.Ed. 925. Former Senator Robert M. La Follette, Jr., has reported
his experience with infiltration of Communist sympathizers into congressional
committee staffs. Collier’s, Feb. 8, 1947, p. 22.
On the other hand is the interest in free speech. The right to
exert all governmental powers in aid of maintaining our institutions and
resisting their physical overthrow does not include intolerance of opinions and
speech that cannot do harm although opposed and perhaps alien to dominant,
traditional opinion. The treatment of its *549 minorities, especially
their legal position, is among the most searching tests of the level of
civilization attained by a society. It is better for those who have almost
unlimited power of government in their hands to err on the side of freedom. We
have enjoyed so much freedom for so long that we are perhaps in danger of
forgetting how much blood it cost to establish the Bill of Rights.
Of course no government can recognize a ‘right’ of revolution, or
a ‘right’ to incite revolution if the incitement has no other purpose or
effect. But speech is seldom restricted to a single purpose, and its effects
may be manifold. A public interest is not wanting in granting freedom to speak
their minds even to those who advocate the overthrow of the Government by
force. For, as the evidence in this case abundantly illustrates, coupled with
such advocacy is criticism of defects in our society. Criticism is the spur to
reform; and Burke’s admonition that a
healthy society must reform in order to conserve has not lost its force. Astute
observers have remarked that one of the characteristics of the American
Republic is indifference to fundamental criticism. Bryce, The American Commonwealth,
c. 84. It is a commonplace that there may be a grain of truth in the most
uncouth doctrine, however false and repellent the balance may be. Suppressing
advocates of overthrow inevitably will also silence critics who do not advocate
overthrow but fear that their criticism may be so construed. No matter how
clear we may be that the defendants now before us are preparing to overthrow
our Government at the propitious moment, it is self-delusion to think that we
can punish them for their advocacy without adding to the risks run by loyal
citizens who honestly believe in some of the reforms these defendants advance.
It is a sobering fact that in sustaining the convictions before us we can
hardly escape restriction on the interchange of ideas.
*550 We must
not overlook the value of that interchange. Freedom of expression is the **888
well-spring of our civilization--the civilization we seek to maintain and
further by recognizing the right of Congress to put some limitation upon
expression. Such are the paradoxes of life. For social development of trial and
error, the fullest possible opportunity for the free play of the human mind is
an indispensable prerequisite. The history of civilization
is in considerable measure the displacement of error which once held sway as
official truth by beliefs which in turn have yielded to other truths. Therefore
the liberty of man to search for truth ought not to be fettered, no matter what
orthodoxies he may challenge. Liberty of thought soon shrivels without freedom
of expression. Nor can truth be pursued in an atmosphere hostile to the
endeavor or under dangers which are hazarded only by heroes.
‘The interest, which (the First Amendment) guards, and which gives
it its importance, presupposes that there are no orthodoxies--religious,
political, economic, or scientific--which are immune from debate and dispute.
Back of that is the assumption--itself an orthodoxy, and the one permissible
exception--that truth will be most likely to emerge, if no limitations are
imposed upon utterances that can with any plausibility be regarded as efforts
to present grounds for accepting or rejecting propositions whose truth the utterer asserts, or denies.’ International Brotherhood of
Electrical Workers v. National Labor Relations Board, 2 Cir., 181 F.2d 34, 40.
In the last analysis it is on the validity of this faith that our national
security is staked.
It is not for us to decide how we would adjust the clash of
interests which this case presents were the primary responsibility for
reconciling it ours. Congress has determined
that the danger created by advocacy of overthrow justifies the ensuing
restriction on freedom of speech. The determination was made after due
deliberation, and *551 the seriousness of the congressional purpose is
attested by the volume of legislation passed to effectuate the same ends.
[FN15]
FN15.
Immigration laws require, for instance, exclusion and deportation of aliens who
advocate the overthrow of the Government by force and violence, and declare
ineligible for naturalization aliens who are members of organizations so
advocating. Act of Feb. 5, 1917, s 19, 39 Stat. 889, 8 U.S.C. s 155, 8 U.S.C.A.
s 155; Act of Oct. 16, 1918, 40 Stat. 1012, 8 U.S.C. s 137, 8 U.S.C.A. s 137;
Act of Oct. 14, 1940, s 305, 54 Stat. 1141, 8 U.S.C. s 705, 8 U.S.C.A. s 705.
The Hatch Act prohibits employment by any Government agency of members of
organizations advocating overthrow of ‘our constitutional form of government’.
Act of Aug. 2, 1939, s 9A, 53 Stat. 1148, 5 U.S.C. (Supp. III) s 118j, 8 U.S.C.A.
s 118j. The Voorhis Act of Oct. 17, 1940, was passed
to require registration of organizations subject to foreign control which
engage in political activity. 54 Stat. 1201, 18 U.S.C. s 2386. The Taft-Hartley
Act contains a section designed to exclude Communists from positions of leadership in labor organizations. Act of June
23, 1947, s 9(h), 61 Stat. 146, 29 U.S.C. (Supp. III) s 159(h), 29 U.S.C.A. s
159(h). And, most recently, the McCarran Act requires registration of
‘Communist-action’ and ‘Communist-front’ organizations. Act of Sept. 23, 1950,
s 7, 64 Stat. 987, 993, 50 U.S.C.A. s 786.
Can we then say that the judgment Congress exercised was denied it
by the Constitution? Can we establish a constitutional doctrine which forbids
the elected representatives of the people to make this choice? Can we hold that
the First Amendment deprives Congress of what it deemed necessary for the
Government’s protection?
To make validity of legislation depend on judicial reading of
events still in the womb of time--a forecast, that is, of the outcome of forces
at best appreciated only with knowledge of the topmost secrets of nations--is
to charge the judiciary with duties beyond its equipment. We do not expect
courts to pronounce historic verdicts on bygone events. Even historians have
conflicting views to this day on the origins and conduct of the French
Revolution, or, for that matter, varying interpretations of ‘the glorious
Revolution’ of 1688. It is as absurd to be confident that we can measure the
present clash of forces and *552 their **889 outcome as to ask us
to read history still enveloped in clouds
of controversy.
In the light of their experience, the Framers of the Constitution
chose to keep the judiciary dissociated from direct participation in the
legislative process. In asserting the power to pass on the constitutionality of
legislation, Marshall and his Court expressed the purposes of the Founders. See
Charles A. Beard, the Supreme Court and the Constitution. But the extent to
which the exercise of this power would interpenetrate matters of policy could
hardly have been foreseen by the most prescient. The distinction which the
Founders drew between the Court’s duty to pass on the power of Congress and its
complementary duty not to enter directly the domain of policy is fundamental.
But in its actual operation it is rather subtle, certainly to the common
understanding. Our duty to abstain from confounding policy with
constitutionality demands perceptive humility as well as self-restraint in not
declaring unconstitutional what in a judge’s private judgment is deemed unwise
and even dangerous.
Even when moving strictly within the limits of constitutional
adjudication, judges are concerned with issues that may be said to involve
vital finalities. The too easy transition from disapproval of what is
undesirable to condemnation as unconstitutional, has led some of the wisest
judges to question the wisdom of our scheme in lodging such authority in
courts. But it is relevant to remind that
in sustaining the power of Congress in a case like this nothing irrevocable is
done. The democratic process at all events is not impaired or restricted. Power
and responsibility remain with the people and immediately with their
representation. All the Court says is that Congress was not forbidden by the
Constitution to pass this enactment and that a prosecution under it may be
brought against a conspiracy such as the one before us.
*553 IV.
The wisdom of the assumptions underlying the legislation and
prosecution is another matter. In finding that Congress has acted within its
power, a judge does not remotely imply that he favors the implications that lie
beneath the legal issues. Considerations there enter which go beyond the
criteria that are binding upon judges within the narrow confines of their
legitimate authority. The legislation we are here considering is but a
truncated aspect of a deeper issue. For me it has been most illuminatingly
expressed by one in whom responsibility and experience have fructified native
insight, the Director- General of the British Broadcasting Corporation:
‘We have to face up to the fact that there are powerful forces in
the world today misusing the privileges of liberty in order to destroy her. The
question must be asked, however, whether suppression of information or opinion
is the true defense. We may have come a long way from Mill’s famous dictum
that: ‘If all mankind minus one were of one
opinion, and only one person were of the contrary opinion, mankind would be no
more justified in silencing that one person, than he, if he had the power,
would be justified in silencing mankind,’ but Mill’s reminders from history as
to what has happened when suppression was most virulently exercised ought to
warn us that no debate is ever permanently won by shutting one’s ears or by
even the most Draconian policy of silencing opponents. The debate must be won.
And it must be won with full information. Where there are lies, they must be
shown for what they are. Where there are errors, they must be refuted. It would
be a major defeat if the enemies of democracy forced us to abandon our faith in
the power of informed discussion and so brought us down *554 to their
own level. Mankind is so constituted, moreover, that if, where expression and
discussion are concerned, the enemies of liberty are met with a denial of
liberty, many men of goodwill will come to suspect there is something in the
proscribed doctrine after all. Erroneous doctrines thrive on being expunged.
They die if exposed.’ Sir William Haley, What Standards for Broadcasting? **890
Measure, Vol. I, No. 3, Summer 1950, pp. 211--212.
In the context of this deeper struggle, another voice has
indicated the limitations of what we decide today. No one is better equipped
than George F. Kennan to speak on the meaning of the
menace of Communism and the spirit in which
we should meet it.
‘If our handling of the problem of Communist influence in our
midst is not carefully moderated--if we permit it, that is, to become an
emotional preoccupation and to blind us to the more important positive tasks
before us-- we can do a damage to our national purpose beyond comparison
greater than anything that threatens us today from the Communist side. The
American Communist party is today, by and large, an external danger. It
represents a tiny minority in our country; it has no real contact with the
feelings of the mass of our people; and its position as the agency of a hostile
foreign power is clearly recognized by the overwhelming mass of our citizens.
‘But the subjective emotional stresses and temptations to which we
are exposed in our attempt to deal with this domestic problem are not an
external danger: they represent a danger within ourselves--a danger that
something may occur in our own minds and souls which will make us no longer like
the persons by whose efforts this republic was founded and held together, but
rather like the representatives *555 of that very power we are trying to
combat: intolerant, secretive, suspicious, cruel, and terrified of internal
dissension because we have lost our own belief in ourselves and in the power of
our ideals. The worst thing that our Communists could do to us, and the thing
we have most to fear from their activities, is that we should become like them.
‘That our country is beset with external dangers I readily
concede. But these dangers, at their worst, are ones of physical destruction,
of the disruption of our world security, of expense and inconvenience and
sacrifice. These are serious, and sometimes terrible things, but they are all
things that we can take and still remain Americans.
‘The internal danger is of a different order. America is not just
territory and people. There is lots of territory elsewhere, and there are lots
of people; but it does not add up to America. America is something in our minds
and our habits of outlook which causes us to believe in certain things and to
behave in certain ways, and by which, in its totality, we hold ourselves
distinguished from others. If that once goes there will be no America to
defend. And that can go too easily if we yield to the primitive human instinct
to escape from our frustrations into the realms of mass emotion and hatred and
to find scapegoats for our difficulties in individual fellow-citizens who are,
or have at one time been, disoriented or confused.’ George F. Kennan, Where do You Stand on Communism? New York Times
Magazine, May 27, 1951, pp. 7, 53, 55.
Civil liberties draw at best only limited strength from legal
guaranties. Preoccupation by our people with the constitutionality, instead of
with the wisdom, of legislation or of executive action is preoccupation with a
false value. Even those who would most freely use the judicial *556
brake on the democratic process by
invalidating legislation that goes deeply against their grain, acknowledge, at
least by paying lip service, that constitutionality does not exact a sense of
proportion or the sanity of humor or an absence of fear. Focusing attention on
constitutionality tends to make constitutionality synonymous with wisdom. When
legislation touches freedom of thought and freedom of speech, such a tendency
is a formidable enemy of the free spirit. Much that should be rejected as
illiberal, because repressive and envenoming, may well be not unconstitutional.
The ultimate reliance for the deepest needs of civilization must be found
outside their vindication in courts of law; apart from all else, judges,
howsoever they may conscientiously seek to discipline themselves against it,
unconsciously are too apt to be moved by the deep under- **891 currents
of public feeling. A persistent, positive translation of the liberating faith
into the feelings and thoughts and actions of men and women is the real
protection against attempts to strait-jacket the human mind. Such temptations
will have their way, if fear and hatred are not exorcized. The mark of a truly
civilized man is confidence in the strength and security derived from the
inquiring mind. We may be grateful for such honest comforts as it supports, but
we must be unafraid of its incertitudes. Without open
minds there can be no open society. And if society be not open the spirit of
man is mutilated and becomes enslaved.
Appendix
to Opinion of Mr. Justice Frankfurter.
Opinions responsible for the view that speech could not
constitutionally be restricted unless there would result from it an
imminent--i.e., close at hand-- substantive evil.
1. Thornhill v. State of Alabama, 310
U.S. 88, 104--105, 60 S.Ct. 736, 745, 84 L.Ed. 1093 (State statute prohibiting picketing held
invalid): ‘* * * Every *557 expression of opinion on matters that are
important has the potentiality of inducing action in the interests of one
rather than another group in society. But the group in power at any moment may
not impose penal sanctions on peaceful and truthful discussion of matters of
public interest merely on a showing that others may thereby be persuaded to
take action inconsistent with its interests. Abridgment of the liberty of such
discussion can be justified only where the clear danger of substantive evils
arises under circumstances affording no opportunity to test the merits of ideas
by competition for acceptance in the market of public opinion. * * *
‘* * * (N)o clear and present danger of destruction of life or
property, or invasion of the right of privacy, or breach of the peace can be
thought to be inherent in the activities of every person who approaches the
premises of an employer and publicizes the facts of a labor dispute involving
the latter.’
2. Bridges v. State of California, 314 U.S. 252, 262--263, 62 S.Ct. 190, 193, 194, 86
L.Ed. 192 (convictions for contempt of court
reversed): ‘* * * (T)he ‘clear and present danger’ language of the Schenck case has afforded practical guidance in a great
variety of cases in which the scope of constitutional protections of freedom of
expression was in issue. It has been utilized by either a majority or minority
of this Court in passing upon the constitutionality of convictions under
espionage acts, Schenck v. United States, supra (249
U.S. 47, 39 S.Ct. 247, 63 L.Ed.
470); Abrams v. United States, 250 U.S. 616, 40 S.Ct.
17, 63 L.Ed. 1173; under a criminal syndicalism act,
Whitney v. (People of State of) California, supra (274 U.S. 357, 47 S.Ct. 641, 71 L.Ed. 1095); under
an ‘anti-insurrection’ act, Herndon v. Lowry, supra (301 U.S. 242, 57 S.Ct. 732, 81 L.Ed. 1066); and
for breach of the peace at common law, Cantwell v. (State of) Connecticut,
supra (310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213). And very recently we have also suggested that
‘clear and present danger’s is an appropriate guide in determining the
constitutionality of restrictions upon expression where the substantive evil
sought to be prevented *558 by the restriction is ‘destruction of life
or property, or invasion of the right of privacy.’ Thornhill
v. Alabama, 310 U.S. 88, 105, 60 S.Ct. 736, 745, 84 L.Ed. 1093.
‘What finally emerges from the ‘clear and present danger’ cases is
a working principle that the substantive evil must be extremely serious and the
degree of imminence extremely high before
utterances can be punished. Those cases do not purport to mark the furthermost
constitutional boundaries of protected expression, nor do we here. They do no
more than recognize a minimum compulsion of the Bill of Rights. For the First
Amendment does not speak equivocally. It prohibits any law ‘abridging the
freedom of speech, or of the press.’ It must be taken as a command of the
broadest scope that explicit **892 language, read in the context of a
liberty-loving society, will allow.’
3. West Virginia State Board of Education v. Barnette,
319 U.S. 624, 639, 63 S.Ct. 1178, 1186, 87 L.Ed. 1628 (flag-salute requirement for school children
held invalid): ‘In weighing arguments of the parties it is important to
distinguish between the due process clause of the Fourteenth Amendment as an instrument
for transmitting the principles of the First Amendment and those cases in which
it is applied for its own sake. The test of legislation which collides with the
Fourteenth Amendment, because it also collides with the principles of the
First, is much more definite than the test when only the Fourteenth is
involved. Much of the vagueness of the due process clause disappears when the
specific prohibitions of the First become its standard. The right of a State to
regulate, for example, a public utility may well include, so far as the due
process test is concerned, power to impose all of the restrictions which a
legislature may have a ‘rational basis’ for adopting. But freedoms of speech and of press, of
assembly, and of worship may not be infringed on such slender grounds. They are
susceptible *559 of restriction only to prevent grave and immediate
danger to interests which the State may lawfully protect. It is important to
note that while it is the Fourteenth Amendment which bears directly upon the
State it is the more specific limiting principles of the First Amendment that
finally govern this case.’
4. Thomas v. Collins, 323 U.S. 516, 529--530, 65 S.Ct. 315, 322, 89 L.Ed. 430
(State statute requiring registration of labor organizers held invalid as applied):
‘The case confronts us again with the duty our system places on this Court to
say where the individual’s freedom ends and the State’s power begins. Choice on
that border, now as always delicate, is perhaps more so where the usual
presumption supporting legislation is balanced by the preferred place given in
our scheme to the great, the indispensable democratic freedoms secured by the
First Amendment. Cf. Schneider v. State of New Jersey, 308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. 155; Cantwell
v. State of Connecticut, 310 U.S. 296, 60 S.Ct. 900,
84 L.Ed. 1213; Prince v. (Com. of) Massachusetts, 321
U.S. 158, 64 S.Ct. 438 (88 L.Ed.
645). That priority gives these liberties a sanctity and a sanction not
permitting dubious intrusions. And it is the character of the right, not of the
limitation, which determines what standard governs the choice. Compare United
States v. Carolene Products Co., 304 U.S. 144,
152, 153, 58 S.Ct. 778, 783, 784, 82 L.Ed. 1234.
‘For these reasons any attempt to restrict those liberties must be
justified by clear public interest, threatened not doubtfully or remotely, but
by clear and present danger. The rational connection between the remedy
provided and the evil to be curbed, which in other contexts might support
legislation against attack on due process grounds, will not suffice. These
rights rest on firmer foundation. Accordingly, whatever occasion would restrain
orderly discussion and persuasion, at appropriate time and place, must have
clear support in public danger, actual or impending. Only the gravest abuses,
endangering paramount interests, give occasions for permissible limitation.’
*560 5.
Craig v. Harney, 331 U.S. 367, 376, 67 S.Ct. 1249,
1255, 91 L.Ed. 1546 (conviction for contempt of court
reversed): ‘The fires which (the language) kindles must constitute an imminent,
not merely a likely, threat to the administration of justice. The danger must
not be remote or even probable; it must immediately imperil.’
6. Giboney v. Empire Storage Co., 336
U.S. 490, 503, 69 S.Ct. 684, 691, 93 L.Ed. 834 (injunction against picketing upheld): ‘* * *
There was clear danger, imminent and immediate, that unless restrained,
appellants would succeed in making (the State’s policy against restraints of
trade) a dead letter insofar as purchases by nonunion men were concerned. * *
*’
7. Terminiello v. City of Chicago, 337
U.S. 1, 4--5, 69 S.Ct. 894, 896, 93 L.Ed. 1131 **893 (conviction for disorderly conduct
reversed): ‘Speech is often provocative and challenging. It may strike at
prejudices and preconceptions and have profound unsettling effects as it
presses for acceptance of an idea. That is why freedom of speech, though not
absolute, Chaplinsky v. (State of) New Hampshire,
supra, 315 U.S. (568) at pages 571-- 572, 62 S.Ct.
(766, 768) at page 769, 86 L.Ed. 1031, is
nevertheless protected against censorship or punishment, unless shown likely to
produce a clear and present danger of a serious substantive evil that rises far
above public inconvenience, annoyance, or unrest. See Bridges v. (State of)
California, 314 U.S. 252, 262, 62 S.Ct. 190, 193, 86 L.Ed. 192; Craig v. Harney, 331 U.S. 367, 373, 67 S.Ct. 1249, 1253, 91 L.Ed. 1546.
There is no room under our Constitution for a more restrictive view. For the
alternative would lead to standardization of ideas either by legislatures,
courts, or dominant political or community groups.’
8. American Communications Ass’n v. Douds, 339 U.S. 382, 396, 412, 70 S.Ct.
674, 683, 691, 94 L.Ed. 925 (‘Non-Communist
affidavit’ provision of Taft- Hartley Act upheld): ‘Speech may be fought with
speech. Falsehoods and fallacies must be exposed, not suppressed, unless there
is not sufficient time to avert the evil consequences of noxious doctrine by
argument and education. That is the command
of the First Amendment.’ And again, ‘(The First) Amendment requires *561
that one be permitted to believe what he will. It requires that one be
permitted to advocate what he will unless there is a clear and present danger
that a substantial public evil will result therefrom.’
Mr. Justice JACKSON, concurring.
This prosecution is the latest of neverending,
because never successful, quests for some legal formula that will secure an
existing order against revolutionary radicalism. It requires us to reappraise,
in the light of our own times and conditions, constitutional doctrines devised
under other circumstances to strike a balance between authority and liberty.
Activity here charged to be criminal is conspiracy--that
defendants conspired to teach and advocate, and to organize the Communist Party
to teach and advocate, overthrow and destruction of the Government by force and
violence. There is no charge of actual violence or attempt at overthrow. [FN1]
FN1.
The Government’s own summary of its charge is: ‘The indictment charged that
from April 1, 1945, to the date of the indictment petitioners unlawfully, wilfully, and knowingly conspired with each other and with
other persons unknown to the grand jury (1) to organize as the Communist Party of the United States of America a
society, group and assembly of persons who teach and advocate the overthrow and
destruction of the Government of the United States by force and violence, and
(2) knowingly and wilfully to advocate and teach the
duty and necessity of overthrowing and destroying the Government of the United
States by force and violence. The indictment alleged that Section 2 of the
Smith Act proscribes these acts and that the conspiracy to take such action is
a violation of Section 3 of the act (18 U.S.C. 10, 11 (1946 ed.)).’
The principal reliance of the defense in this Court is that the
conviction cannot stand under the Constitution because the conspiracy of these
defendants presents no ‘clear and present danger’ of imminent or foreseeable
overthrow.
*562 I.
The statute before us repeats a pattern, originally devised to
combat the wave of anarchistic terrorism that plagued this country about the
turn of the century, [FN2] **894 which
lags at least two generations behind Communist Party techniques.
FN2.
The Government says this Act before us was modeled after the New York Act of
1909, sustained by this Court in Gitlow v. People of
State of New York, 268 U.S. 652, 45 S.Ct. 625, 69 L.Ed. 1138. That,
in turn, as the Court pointed out, followed an earlier New York Act of 1902.
Shortly after the assassination of President McKinley by an anarchist, Congress
adopted the same concepts in the Immigration Act of March 3, 1903. 32 Stat.
1213, s 2. Some germs of the same concept can be found in some reconstruction
legislation, such as the Enforcement Act of 1871, 17 Stat. 13. The Espionage
Act of 1917, 40 Stat. 217, tit. 1, s 3, which gave rise to a series of
civil-rights decisions, applied only during war and defined as criminal ‘false
statements with intent’ to interfere with our war effort or cause insubordination
in the armed forces or obstruct recruiting. However, a wave of ‘criminal
syndicalism statutes’ were enacted by the States. They were generally upheld,
Whitney v. People of State of California, 274 U.S. 357, 47 S.Ct.
641, 71 L.Ed. 1095, and prosecutions under them were
active from 1919 to 1924. In California alone, 531 indictments were returned
and 164 persons convicted. 4 Encyc.Soc.Sci. 582, 583.
The Smith Act followed closely the terminology designed to incriminate the
methods of terroristic anarchism.
Anarchism taught a philosophy of extreme individualism and
hostility to government and property. Its avowed aim was a more just order, to
be achieved by violent destruction of all
government. [FN3] Anarchism’s sporadic and
uncoordinated acts of terror were not integrated with an effective
revolutionary machine, but the Chicago Haymarket riots of 1886, [FN4] attempted murder of the industrialist
Frick, attacks on state officials, and *563 assassination of President
McKinley in 1901, were fruits of its preaching.
FN3.
Elementary texts amplify the theory and practice of these movements which must
be greatly oversimplified in this opinion. See Anarchism, 2 Encyc.Soc.Sci.
46; Nihilism, 11 Encyc.Soc.Sci. 377.
FN4.
Spies v. People, 122 Ill. 1, 12 N.E.2d 865, 17 N.E. 898.
However, extreme individualism was not conducive to cohesive and
disciplined organization. Anarchism fell into disfavor among incendiary
radicals, many of whom shifted their allegiance to the rising Communist Party.
Meanwhile, in Europe anarchism had been displaced by Bolshevism as the doctrine
and strategy of social and political upheaval. Led by intellectuals hardened by
revolutionary experience, it was a more sophisticated, dynamic and realistic movement. Establishing a base in the Soviet
Union, it founded an aggressive international Communist apparatus which has
modeled and directed a revolutionary movement able only to harass our own
country. But it has seized control of a dozen other countries.
Communism, the antithesis of anarchism, [FN5] appears today as a closed system of
thought representing Stalin’s *564 version of Lenin’s version of
Marxism. As an ideology, it is not one of spontaneous protest arising from
American working-class experience. It is a complicated system of assumptions,
based on European history and conditions, shrouded in an obscure and ambiguous
vocabulary, which allures our ultrasophisticated
intelligentsia more than our **895 hard-headed working people. From time
to time it champions all manner of causes and grievances and makes alliances
that may add to its foothold in government or embarrass the authorities.
FN5.
Prof. Beard demonstrates this antithesis by quoting the Russian anarchist
leader Bakunin, as follows:
“Marx is an authoritarian and centralizing
communist. He wishes what we wish: the complete triumph of economic and social
equality, however, within the state and through the power of the state, through
the dictatorship of a very strong and, so to speak, despotic provisional
government, that is, by the negation of liberty.
His economic ideal is the state as the sole owner of land and capital, tilling
the soil by means of agricultural associations, under the management of its
engineers, and directing through the agency of capital all industrial and
commercial associations.
“We demand the same triumph of economic
and social equality through the abolition of the state and everything called
juridical right, which is according to our view the permanent negation of human
right. We wish the reconstruction of society and the establishment of the unity
of mankind not from above downward through authority, through socialistic
officials, engineers and public technicians, but from below upward through the
voluntary federation of labor associations of all kinds emancipated entirely
from the yoke of the state.” Beard, Individualism and Capitalism, 1 Encyc.Soc.Sci. 145, 158.
The Communist Party, nevertheless, does not seek its strength
primarily in numbers. Its aim is a relatively small party whose strength is in
selected, dedicated, indoctrinated, and rigidly disciplined members. From
established policy it tolerates no deviation and no debate. It seeks members
that are, or may be, secreted in strategic posts in transportation,
communications, industry, government, and especially in labor unions where it
can compel employers to accept and retain
its members. [FN6] It also seeks to
infiltrate and control organizations of professional and other groups. Through
these placements in positions of power it seeks a leverage over society that will
make up in power of coercion what it lacks in power of persuasion.
FN6.
For methods and objects of infiltration of labor unions, see American
Communications Ass’n v. Douds,
339 U.S. 382, 422, 70 S.Ct. 674, 695, 94 L.Ed. 925.
The Communists have no scruples against sabotage, terrorism,
assassination, or mob disorder; but violence is not with them, as with the
anarchists, an end in itself. The Communist Party advocates force only when
prudent and profitable. Their strategy of stealth precludes premature or
uncoordinated outbursts of violence, except, of course, when the blame will be
placed on shoulders other than their own. They resort to violence as to truth,
not *565 as a principle but as an expedient. Force or violence, as they
would resort to it, may never be necessary, because infiltration and deception
may be enough.
Force would be utilized by the Communist Party not to destroy
government but for its capture. The Communist recognizes that an established
government in control of modern technology cannot be overthrown by force until
it is about ready to fall of its own
weight. Concerted uprising, therefore, is to await that contingency and
revolution is seen, not as a sudden episode, but as the consummation of a long
process.
The United States, fortunately, has experienced Communism only in
its preparatory stages and for its pattern of final action must look abroad.
Russia, of course, was the pilot Communist revolution, which to the Marxist
confirms the Party’s assumptions and points it destiny. [FN7] *566 But Communist technique in
the overturn of a free government was disclosed by the coup d’etat
in which they seized power in Czechoslovakia.
[FN8] There the Communist Party during its preparatory stage claimed and
received**896 protection for its freedoms of speech, press, and
assembly. Pretending to be but another political party, it eventually was
conceded participation in government, where it entrenched reliable members
chiefly in control of police and information services. When the government
faced a foreign and domestic crisis, the Communist Party had established a
leverage strong enough to threaten civil war. In a period of confusion the
Communist plan unfolded and the underground organization came to the surface
throughout the country in the form chiefly of labor ‘action committees.’
Communist officers of the unions took over transportation and allowed only
persons with party permits to travel. Communist printers took over the
newspapers and radio and put out only party-approved
versions of events. Possession was taken of telegraph and telephone systems and
communications were cut off wherever directed by party heads. Communist unions
took over the factories, and in the cities a partisan distribution of food was
managed by the Communist organization. A virtually bloodless abdication by the
elected government admitted the Communists to power, whereupon they instituted
a reign of oppression and terror, and ruthlessly denied to all others the
freedoms which had sheltered their conspiracy.
FN7.
The Czar’s government, in February 1917, literally gave up, almost without
violence, to the Provisional Government, because it was ready to fall apart
from its corruption, ineptitude, superstition, oppression and defeat. The
revolutionary parties had little to do with this and regarded it as a
bourgeoisie triumph. Lenin was an exile in Switzerland, Trotsky in the United
States, and Stalin was in Siberia. The Provisional Government attempted to
continue the war against Germany, but it, too, was unable to solve internal problems
and its Galician campaign failed with heavy losses. By October, its prestige
and influence sank so low that it could not continue. Meanwhile, Lenin and
Trotsky had returned and consolidated the Bolshevik position around the
Soviets, or trade unions. They simply took
over power in an almost bloodless revolution between October 25 and November 7,
1917. That Lenin and Trotsky represented only a minority was demonstrated in
November elections, in which the Bolsheviks secured less than a quarter of the seats.
Then began the series of opportunistic movements to entrench themselves in
power. Faced by invasion of the allies, by counterrevolution, and the attempted
assassination of Lenin, terrorism was resorted to on a large scale and all the
devices of the Czar’s police state were reestablished. See 1 Carr, The
Bolshevik Revolution, 1917--1923, 99--110, and Moore, Soviet Politics--The
Dilemma of Power, 117--139.
FN8. Ivo Duchacek, The Strategy of
Communist Infiltration: Czechoslovakia, 1944--1948, World Politics, vol. II,
No. 3 (April 1950), pp. 345--372; and The February Coup in Czechoslovakia, id.,
July 1950, 511--532; see also Kertesz, The Methods of
Communist Conquest: Hungary, 1944--1947, id., October, 1950, pp. 20--54; Lasswell, the Strategy of Soviet Propaganda, 24 Acad.Pol.Sci.Proc. 214, 221. See also Friedman, The
Break-up of Czech Democracy.
*567 II.
The foregoing is enough to indicate that, either by accident or
design, the Communist strategem outwits the
anti-anarchist pattern of statute aimed against ‘overthrow by force and
violence’ if qualified by the doctrine that only ‘clear and present danger’ of
accomplishing that result will sustain the prosecution.
The ‘clear and present danger’ test was an innovation by Mr.
Justice Holmes in the Schenck case, [FN9] reiterated and refined by him and Mr.
Justice Brandeis in later cases, [FN10] all
arising before the era of World War II revealed the subtlety and efficacy of
modernized revolutionary techniques used by totalitarian parties. In those
cases, they were faced with convictions under so-called criminal syndicalism
statutes aimed at anarchists but which, loosely construed, had been applied to
punish socialism, pacifism, and left-wing ideologies, the charges often resting
on far*568 -fetched inferences which, if true, would establish only
technical or trivial violations. They proposed ‘clear and present danger’ as a
test for the sufficiency of evidence in particular cases.
FN9. Schenck v. United States, 249 U.S. 47, 39 S.Ct. 247, 249, 63 L.Ed. 470.
This doctrine has been attacked as one which ‘annuls the most significant
purpose of the First Amendment. It destroys the intellectual basis of our plan of self-government.’ Meiklejohn, Free Speech And Its Relation to
Self-Government, 29. It has been praised: ‘The concept of freedom of speech
received for the first time an authoritative judicial interpretation in accord
with the purposes of the framers of the Constitution.’ Chafee, Free Speech in
the United States, 82. In either event, it is the only original judicial
thought on the subject, all later cases having made only extensions of its
application. All agree that it means something very important, but no two seem
to agree on what it is. See concurring opinion, Mr. Justice Frankfurter, Kovacs
v. Cooper, 336 U.S. 77, 89, 69 S.Ct. 448, 454, 93 L.Ed. 513.
FN10.
Gitlow v. People of State of New York, 268 U.S. 652,
45 S.Ct. 625, 69 L.Ed.
1138; Whitney v. People of State of California, 274 U.S. 357, 47 S.Ct. 641, 71 L.Ed. 1095. Holmes’
comment on the former, in his letters to Sir Frederick Pollock of June 2 and
18, 1925, as ‘a case in which conscience and judgment are a little in doubt,’
and description of his dissent as one ‘in favor of the rights of an anarchist
(so-called) to talk drool in favor of the proletarian dictatorship’ show the
tentative nature of his test, even as applied to a trivial case. Holmes-Pollock
Letters (Howe ed. 1946).
**897 I
would save it, unmodified, for application as a ‘rule of reason’ [FN11] in the
kind of case for which it was devised. When the issue is criminality of a
hot-headed speech on a street corner, or circulation of a few incendiary
pamphlets, or parading by some zealots behind a red flag, or refusal of a
handful of school children to salute our flag, it is not beyond the capacity of
the judicial process to gether, comprehend, and weigh
the necessary materials for decision whether it is a clear and present danger
of substantive evil or a harmless letting off of steam. It is not a prophecy,
for the danger in such cases has matured by the time of trial or it was never
present. The test applies which does not directly or explicitly advocate is
sought to be based on a speech or writing which does not directly or explccitly advocate a crime but to which such tendency is
sought to be attributed by construction or by implication from external
circumstances. The formula in such cases favors freedoms that are vital to our
society, and, even if sometimes applied too generously, the consequences cannot
be grave. But its recent expansion has extended, in particular to Communists,
unprecedented immunities. [FN12] Unless we
are to hold our Government captive in a judge-made verbal trap, we must
approach the problem of a well-or-ganized,
nation-wide conspiracy, such as I have *569 described, as realistically
as our predecessors faced the trivialities
that were being prosecuted until they were checked with a rule of reason.
FN11.
So characterized by Mr. Justice Brandeis is Schaefer v. United States, 251 U.S.
466, 482, 40 S.Ct. 259, 264, 64 L.Ed.
360.
FN12.
Recent cases have pushed the ‘clear and present danger’ doctrine to greater
extremes. While Mr. Justice Brandeis said only that the evil to be feared must
be ‘imminent’ and ‘relatively serious,’ Whitney v. People of State of
California, 274 U.S. 357, 376 and 377, 47 S.Ct. 641,
648, 71 L.Ed. 1095, more recently it was required
‘that the substantive evil must be extremely serious and the degree of
imminence extremely high before utterances can be punished.’ Bridges v. State
of California, 314 U.S. 252, 263, 62 S.Ct. 190, 194,
86 L.Ed. 192. (Italics supplied.)
Schneiderman v. United States, 320 U.S. 118, 63 S.Ct. 1333, 87 L.Ed. 1796,
overruled earlier holdings that the courts could take judicial notice that the
Communist Party does advocate overthrow of the Government by force and
violence. This Court reviewed much of the basic Communist literature that is
before us now, and held that it was within ‘the area of allowable thought’, id., 320 U.S. at page 139, 63 S.Ct. at page 1343, 87 L.Ed.
1796, that it does not show lack of attachment to the Constitution, and that
success of the Communist Party would not necessarily mean the end of
representative government. The Court declared further that ‘A tenable
conclusion from the foregoing is that the Party in 1927 desired to achieve its
purpose by peaceful and democratic means, and as a theoretical matter justified
the use of force and violence only as a method of preventing an attempted
forcible counter-overthrow once the Party had obtained control in a peaceful manner,
or as a method of last resort to enforce the majority will if at some
indefinite future time because of peculiar circumstances constitutional or
peaceful channels were no longer open.’ Id., 320 U.S. at 157, 63 S.Ct. at page 1352, 87 L.Ed.
1796. Moreover, the Court considered that this ‘mere doctrinal justification or
prediction of the use of force under hypothetical conditions at some indefinite
future time-- prediction that is not calculated or intended to be presently
acted upon, * * *,’ ibid., was within the realm of free speech. A dissent by
Mr. Chief Justice Stone, for himself and Justices Roberts and Frankfurter,
challenged these naive conclusions, as they did again in Bridges v. Wixon, 326 U.S. 135, 65 S.Ct.
1443, 89 L.Ed. 2103, in which the Court again set
aside an Attorney General’s deportation order. Here Mr. Justice Murphy, without whom there would not have been
a majority for the decision, speaking for himself in a concurring opinion,
pronounced the whole deportation statute unconstitutional, as applied to
Communists, under the ‘clear and present danger test’, because, ‘Not the
slightest evidence was introduced to show that either bridges or the Communist
Party seriously and imminently threatens to uproot the Government by force or
violence.’ 326 U.S. at 165, 65 S.Ct. at page 1457, 89
L.Ed. 2103.
I think reason is lacking for applying that test to this case.
**898 *570
If we must decide that this Act and its application are constitutional only if
we are convinced that petitioner’s conduct creates a ‘clear and present danger’
of violent overthrow, we must appraise imponderables, including international
and national phenomena which baffle the best informed foreign offices and our
most experienced politicians. We would have to foresee and predict the
effectiveness of Communist propaganda, opportunities for infiltration, whether,
and when, a time will come that they consider propitious for action, and
whether and how fast our existing government will deteriorate. And we would
have to speculate as to whether an approaching Communist coup would not be
anticipated by a nationalistic fascist movement. No doctrine can be sound whose
application requires us to make a prophecy
of that sort in the guise of a legal decision. The judicial process simply is not
adequate to a trial of such far-flung issues. The answers given would reflect
our own political predilections and nothing more.
The authors of the clear and present danger test never applied it
to a case like this, nor would I. If applied as it is 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.
III.
The highest degree of constitutional protection is due to the
individual acting without conspiracy. But even an individual cannot claim that
the Constitution protects him in advocating or teaching overthrow of government
by force or violence. I should suppose no one would doubt that Congress has
power to make such attempted *571 overthrow a crime. But the contention
is that one has the constitutional right to work up a public desire and will to
do what it is a crime to attempt. I think direct incitement by speech or
writing can be made a crime, and I think there can be a conviction without also
proving that the odds favored its success by 99 to 1, or some other extremely
high ratio.
The names of Mr. Justice Holmes and Mr. Justice Brandeis cannot be
associated with such a doctrine of governmental disability. After the Schenck case, in which they set forth the clear and present
danger test, they joined in these words of Mr. Justice Holmes, spoken for a
unanimous Court:
‘* * * (T)he First Amendment while prohibiting legislation against
free speech as such cannot have been, and obviously was not, intended to give
immunity for every possible use of language. Robertson v. Baldwin, 165 U.S.
275, 281, 17 S.Ct. 326 (328), 41 L.Ed.
715. We venture to believe that neither Hamilton nor Madison, nor any other
competent person then or later, ever supposed that to make criminal the counselling of a murder within the jurisdiction of Congress
would be an unconstitutional interference with free speech.’ Frohwerk v. United States, 249 U.S. 204, 39 S.Ct. 249, 250, 63 L.Ed. 561.
The same doctrine was earlier stated in Fox v. State of
Washington, 236 U.S. 273, 277, 35 S.Ct. 383, 384, 59 L.Ed. 573, and that case was recently and with approval
cited in Giboney v. Empire Storage & Ice Co., 336
U.S. 490, 502, 69 S.Ct. 684, 690, 93 L.Ed. 834.
As aptly stated by Judge Learned Hand in Masses Publishing Co. v.
Patten, D.C., 244 F. 535, 540: ‘One may not counsel or advise others to violate
the law as it stands. Words are not only the keys of persuasion, but the
triggers of action, and those which have no purport but to counsel the
violation of law cannot by any latitude of
interpretation be a part of that public opinion which is the final source of
government in a democratic state.’
*572 Of
course, it is not always easy to distinguish teaching or advocacy in the sense
of incitement from teaching or advocacy in the sense of exposition or
explanation. It is a question of fact in each case.
**899 IV.
What really is under review here is a conviction of conspiracy,
after a trial for conspiracy, on an indictment charging conspiracy, brought
under a statute outlawing conspiracy. With due respect to my colleagues, they
seem to me to discuss anything under the sun except the law of conspiracy. One
of the dissenting opinions even appears to chide me for ‘invoking the law of
conspiracy.’ As that is the case before us, it may be more amazing that its
reversal can be proposed without even considering the law of conspiracy.
The Constitution does not make conspiracy a civil right. The Court
has never before done so and I think it should not do so now. Conspiracies of
labor unions, trade associations, and news agencies have been condemned,
although accomplished, evidenced and carried out, like the conspiracy here,
chiefly by letter-writing, meetings, speeches and organization. Indeed, this
Court seems, particularly in cases where the conspiracy has economic ends, to
be applying its doctrines with increasing severity. While I consider criminal
conspiracy a dragnet device capable of
perversion into an instrument of injustice in the hands of a partisan or
complacent judiciary, it has an established place in our system of law, and no
reason appears for applying it only to concerted action claimed to disturb
interstate commerce and withholding it from those claimed to undermine our
whole Government. [FN13]
FN13.
These dangers were more fully set out in Krulewitch
v. United States, 336 U.S. 440, 445, 69 S.Ct. 716,
719, 93 L.Ed. 790.
*573 The
basic rationale of the law of conspiracy is that a conspiracy may be an evil in
itself, independently of any other evil it seeks to accomplish. Thus, we
recently held in Pinkerton v. United States, 328 U.S. 640, 643-- 644, 66 S.Ct. 1180, 1182, 90 L.Ed. 1489,
‘It has been long and consistently recognized by the Court that the commission
of the substantive offense and a conspiracy to commit it are separate and
distinct offenses. The power of Congress to separate the two and to affix to
each a different penalty is well established. * * * And the plea of double
jeopardy is no defense to a conviction for both offenses. * * *’
So far does this doctrine reach that it is well settled that
Congress may make it a crime to conspire with others to do what an individual
may lawfully do on his own. This principle
is illustrated in conspiracies that violate the antitrust laws as sustained and
applied by this Court. Although one may raise the prices of his own products,
and many, acting without concert, may do so, the moment they conspire to that
end they are punishable. The same principle is applied to organized labor. Any
workman may quit his work for any reason, but concerted actions to the same end
are in some circumstances forbidden. National Labor Relations Act, as amended,
61 Stat. 136, s 8(b), 29 U.S.C. s 158(b), 29 U.S.C.A. s 158(b).
The reasons underlying the doctrine that conspiracy may be a
substantive evil in itself, apart from any evil it may threaten, attempt or
accomplish, are peculiarly appropriate to conspiratorial Communism.
‘The reason for finding criminal liability in case of a
combination to effect an unlawful end or to use unlawful means, where none
would exist, even though the act contemplated were actually committed by an
individual, is that a combination of persons to commit a wrong, either as an
end or as a means to an end, is so much more dangerous, because of its
increased power to do wrong, because it is more difficult *574 to guard
against and prevent the evil designs of a group of persons than of a single
person, and because of the terror which fear of such a combination tends to
create in the minds of people.’ [FN14]
FN14.
Miller on Criminal Law, 110. Similar reasons have been reiterated by this
Court. United States v. Rabinowich, 238 U.S. 78, 88,
35 S.Ct. 682, 684, 59 L.Ed.
1211; Pinkerton v. United States, 328 U.S. 640, 643--644, 66 S.Ct. 1180, 1181, 1182, 90 L.Ed.
1489.
**900 There
is lamentation in the dissents about the injustice of conviction in the absence
of some overt act. Of course, there has been no general uprising against the
Government, but the record is replete with acts to carry out the conspiracy
alleged, acts such as always are held sufficient to consummate the crime where
the statute requires an overt act.
But the shorter answer is that no overt act is or need be
required. The Court, in antitrust cases, early upheld the power of Congress to
adopt the ancient common law that makes conspiracy itself a crime. Through Mr.
Justice Holmes, it said: ‘Coming next to the objection that no overt act is
laid, the answer is that the Sherman act (15 U.S.C.A. ss
1--7, 15 note) punishes the conspiracies at which it is aimed on the common law
footing--that is to say, it does not make the doing of any act other than the
act of conspiring a condition of liability.’ Nash v. United States, 229 U.S.
373, 378, 33 S.Ct. 780, 782, 57 L.Ed.
1232. Reiterated, United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 252, 60 S.Ct.
811, 846, 84 L.Ed. 1129. It is not to be supposed
that the power of Congress to protect the Nation’s existence is more limited
than its power to protect interstate commerce.
Also, it is urged that since the conviction is for conspiracy to
teach and advocate, and to organize the Communist Party to teach and advocate,
the First Amendment is violated, because freedoms of speech and press protect
teaching and advocacy regardless of what is taught or advocated. I have never
thought that to be the law.
*575 I do
not suggest that Congress could punish conspiracy to advocate something, the
doing of which it may not punish. Advocacy or exposition of the doctrine of
communal property ownership, or any political philosophy unassociated with
advocacy of its imposition by force or seizure of government by unlawful means
could not be reached through conspiracy prosecution. But it is not forbidden to
put down force or violence, it is not forbidden to punish its teaching or
advocacy, and the end being punishable, there is no doubt of the power to
punish conspiracy for the purpose.
The defense of freedom of speech or press has often been raised in
conspiracy cases, because, whether committed by Communists, by businessmen, or
by common criminals, it usually consists of words written or spoken, evidenced
by letters, conversations, speeches or documents. Communication is the essence
of every conspiracy, for only by it can
common purpose and concert of action be brought about or be proved. However,
when labor unions raised the defense of free speech against a conspiracy
charge, we unanimously said:
‘It rarely has been suggested that the constitutional freedom for
speech and press extends its immunity to speech or writing used as an integral
part of conduct in violation of a valid criminal statute. We reject the
contention now. * * *
‘* * * It is true that the agreements and course of conduct here
were as in most instances brought about through speaking or writing. But it has
never been deemed an abridgment of freedom of speech or press to make a course
of conduct illegal merely because the conduct was in part initiated, evidenced,
or carried out by means of language, either spoken, written, or printed. * * *
Such an expansive interpretation *576 of the constitutional guaranties
of speech and press would make it practically impossible ever to enforce laws
against agreements in restraint of trade as well as many other agreements and
conspiracies deemed injurious to society.’ Giboney v.
Empire Storage & Ice Co., 336 U.S. 490, 498, 502, 69 S.Ct.
684, 688, 691, 93 L.Ed. 834.
A contention by the press itself, in a conspiracy case, that it
was entitled to the benefits of the ‘clear and present danger’ test, was curtly
rebuffed by this Court, saying: ‘Nor is a publisher who engages in business
practices made unlawful by the Sherman Act
entitled to a partial immunity by reason of the ‘clear and present danger’ **901
doctrine. * * * Formulated as it was to protect liberty of thought and of
expression, it would degrade the clear and present danger doctrine to fashion
from it a shield for business publishers who engage in business practices
condemned by the Sherman Act. * * *’ Associated Press v. United States, 326
U.S. 1, 7, 65 S.Ct. 1416, 1418, 89 L.Ed. 2013. I should think it at least as ‘degrading’ to
fashion of it a shield for conspirators whose ultimate purpose is to capture or
overthrow the Government.
In conspiracy cases the Court not only has dispensed with proof of
clear and present danger but even of power to create a danger: ‘It long has
been settled, however, that a ‘conspiracy to commit a crime is a different
offense from the crime that is the object of the conspiracy.’ * * *
Petitioners, for example, might have been convicted here of a conspiracy to
monopolize without ever having acquired the power to carry out the object of
the conspiracy * * *.’ American Tobacco Co. v. United States, 328 U.S. 781,
789, 66 S.Ct. 1125, 1129, 90 L.Ed.
1575.
Having held that a conspiracy alone is a crime and its
consummation is another, it would be weird legal reasoning to hold that
Congress could punish the one only if there was ‘clear and present danger’ of
the second. This *577 would compel the Government to prove two crimes in
order to convict for one.
When our constitutional provisions were written, the chief forces
recognized as antagonists in the struggle between authority and liberty were
the Government on the one hand and the individual citizen on the other. It was
thought that if the state could be kept in its place the individual could take
care of himself.
In more recent times these problems have been complicated by the
intervention between the state and the citizen of permanently organized,
well-financed, semisecret and highly disciplined political organizations.
Totalitarian groups here and abroad perfected the technique of creating private
paramilitary organizations to coerce both the public government and its
citizens. These organizations assert as against our Government all of the
constitutional rights and immunities of individuals and at the same time
exercise over their followers much of the authority which they deny to the Government.
The Communist Party realistically is a state within a state, an authoritarian
dictatorship within a republic. It demands these freedoms, not for its members,
but for the organized party. It denies to its own members at the same time the
freedom to dissent, to debate, to deviate from the party line, and enforces its
authoritarian rule by crude purges, if nothing more violent.
The law of conspiracy has been the chief means at the Government’s
disposal to deal with the growing problems
created by such organizations. I happen to think it is an awkward and inept
remedy, but I find no constitutional authority for taking this weapon from the
Government. There is no constitutional right to ‘gang up’ on the Government.
While I think there was power in Congress to enact this statute
and that, as applied in this case, it cannot be *578 held
unconstitutional, [FN15] I add that I have
little faith in the long-range effectiveness of this conviction to stop the
rise of the Communist movement. Communism will not go to jail with these
Communists. No decision by this Court can forestall revolution whenever the
existing government fails to command the respect and loyalty of the people and
sufficient distress and discontent is allowed to grow up among the masses. Many
failures by fallen governments attest that no government can long prevent
revolution by **902 outlawry. [FN16]
Corruption, ineptitude, inflation, oppressive taxation, militarization,
injustice, and loss of leadership capable of intellectual initiative in domestic
or foreign affairs are allies on which the Communists *579 count to
bring opportunity knocking to their door. Sometimes I think they may be
mistaken. But the Communists are not building just for today--the rest of us
might profit by their example.
FN15.
The defendants have had the benefit so far in this case of all the doubts and confusions afforded by attempts
to apply the ‘clear and present danger’ doctrine. While I think it has no
proper application to the case, these efforts have been in response to their
own contentions and favored rather than prejudiced them. There is no call for
reversal on account of it.
FN16.
The pathetically ineffective efforts of free European states to overcome
feebleness of the Executive and decomposition of the Legislative branches of
government by legal proscriptions are reviewed in Loewenstein,
Legislative Control of Political Extremism in European Democracies, 38 Col.L.Rev. 591, 725 (1938). The Nazi Party seizure of power
in Germany occurred while both it and its Communist counterpart were under
sentence of illegality from the courts of the Weimar Republic. The German
Criminal Code struck directly at the disciplinary system of totalitarian
parties. It provided:
‘The participation in an organization the
existence, constitution, or purposes of which are to be kept secret from the
Government, or in which obedience to unknown superiors or unconditional
obedience to known superiors is pledged, is punishable by imprisonment up to
six months for the members and from one month to one year for the founders and
officers. Public officials may be deprived
of the right to hold public office for a period of from one to five years.’ 2
Nazi Conspiracy and Aggression (GPO 1946) 11.
The Czar’s government of Russia fell while
the Communist leaders were in exile. See n. 7. Instances of similar failures
could be multiplied indefinitely.
Mr. Justice BLACK, dissenting.
Here again, as in Breard v. City of
Alexandria, 341 U.S. 622, 71 S.Ct. 920, my basic
disagreement with the Court is not as to how we should explain or reconcile
what was said in prior decisions but springs from a fundamental difference in
constitutional approach. Consequently, it would serve no useful purpose to
state my position at length.
At the outset I want to emphasize what the crime involved in this
case is, and what it is not. These petitioners were not charged with an attempt
to overthrow the Government. They were not charged with overt acts of any kind
designed to overthrow the Government. They were not even charged with saying
anything or writing anything designed to overthrow the Government. The charge
was that they agreed to assemble and to talk and publish certain ideas at a later date: 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 s 3 of the Smith Act authorizing this prior restraint unconstitutional on
its face and as applied.
But let us assume, contrary to all constitutional ideas of fair
criminal procedure, that petitioners although not indicted for the crime of
actual advocacy, may be punished for it. Even on this radical assumption, the
other opinions in this case show that the only way to affirm *580 these
convictions is to repudiate directly or indirectly the established ‘clear and
present danger’ rule. This the Court does in a way which greatly restricts the
protections afforded by the First Amendment. The opinions for affirmance indicate that the chief reason for jettisoning
the rule is the expressed fear that advocacy of Communist doctrine endangers
the safety of the Republic. Undoubtedly, a governmental policy of unfettered
communication of ideas does entail dangers. To the Founders of this Nation,
however, the benefits derived from free expression were worth the risk. They
embodied this philosophy in the First Amendment’s command that ‘Congress shall
make no law * * * abridging the freedom of speech, or of the press * * *.’ I
have always believed that the First
Amendment is the keystone **903 of our Government, that the freedoms it
guarantees provide the best insurance against destruction of all freedom. At
least as to speech in the realm of public matters, I believe that the ‘clear
and present danger’ test does not ‘mark the furthermost constitutional
boundaries of protected expression’ but does ‘no more than recognize a minimum
compulsion of the Bill of Rights.’ Bridges v. State of California, 314 U.S.
252, 263, 62 S.Ct. 190, 86 L.Ed.
192.
So long as this Court exercises the power of judicial review of
legislation, I cannot agree that the First Amendment permits us to sustain laws
suppressing freedom of speech and press on the basis of Congress’ or our 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
Amendment as so construed is not likely to protect any but those ‘safe’ or
orthodox views which rarely need its protection. I must also express my
objection to the holding because, as Mr. Justice Douglas’ dissent shows, it
sanctions the determination of a crucial issue of fact by the judge rather than
by the jury. Nor can I let this opportunity *581 pass without expressing
my objection to the severely limited grant of certiorari in this case which
precluded consideration here of at least two other reasons for reversing these
convictions: (1) the record shows a discriminatory selection of the jury panel
which prevented trial before a
representative cross-section of the community; (2) the record shows that one
member of the trial jury was violently hostile to petitioners before and during
the trial.
Public opinion being what it now is, few will protest the
conviction of these Communist petitioners. There is hope, however, that in
calmer times, when present pressures, passions and fears subside, this or some
later Court will restore the First Amendment liberties to the high preferred
place where they belong in a free society.
Mr. Justice DOUGLAS, dissenting.
If this were a case where those who claimed protection under the
First Amendment were teaching the techniques of sabotage, the assassination of
the President, the filching of documents from public files, the planting of
bombs, the art of street warfare, and the like, I would have no doubts. The
freedom to speak is not absolute; the teaching of methods of terror and other
seditious conduct should be beyond the pale along with obscenity and
immorality. This case was argued as if those were the facts. The argument
imported much seditious conduct into the record. That is easy and it has
popular appeal, for the activities of Communists in plotting and scheming
against the free world are common knowledge. But the fact is that no such
evidence was introduced at the trial. There
is a statute which makes a seditious conspiracy unlawful. [FN1] Petitioners,
however, were not *582 charged with a ‘conspiracy to overthrow’ the
Government. They were charged with a conspiracy to form a party and groups and
assemblies of people who teach and advocate the overthrow of our Government by
force or violence and with a conspiracy to advocate and teach its overthrow by
force and violence. [FN2] It may well be that
indoctrination in the techniques of terror to destroy the Government would be
indictable under either statute. But the teaching which is condemned here is of
a different character.
FN1.
18 U.S.C. s 2384 provides: ‘If two or more persons in any State or Territory,
or in any place subject to the jurisdiction of the United States, conspire to
overthrow, put down, or to destroy by force the Government of the United
States, or to levy war against them, or to oppose by force the authority
thereof, or by force to prevent, hinder, or delay the execution of any law of
the United States, or by force to seize, take, or possess any property of the
United States contrary to the authority thereof, they shall each be fined not
more than $5,000 or imprisoned not more than six years, or both.’
FN2. 18 U.S.C. ss
10, 11, 54 Stat. 671.
**904 So far
as the present record is concerned, what petitioners did was to organize people
to teach and themselves teach the Marxist-Leninist doctrine contained chiefly
in four books: [FN3] Foundations of Leninism
by Stalin (1924); The Communist Manifesto by Marx and Engels
(1848); State and Revolution by Lenin (1917); History of the Communist Party of
the Soviet Union (B.) (1939).
FN3.
Other books taught were Problems of Leninism by Stalin, Strategy and Tactics of
World Communism (H.R.Doc. No. 619, 80th Cong., 2d Sess.),
and Program of the Communist International.
Those books are to Soviet Communism what Mein Kampf
was to Nazism. If they are understood, the ugliness of Communism is revealed,
its deceit and cunning are exposed, the nature of its activities becomes
apparent, and the chances of its success less likely. That is not, of course,
the reason why petitioners chose these books for their classrooms. They are
fervent Communists to whom these volumes are gospel. They preached the creed
with the hope that some day it would be acted upon.
*583 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.
There was a time in England when the concept of constructive
treason flourished. Men were punished not for raising a hand against the king
but for thinking murderous thoughts about him. The Framers of the Constitution
were alive to that abuse and took steps to see that the practice would not
flourish here. Treason was defined to require overt acts--the evolution of a
plot against the country into an actual project. The present case is not one of
treason. But the analogy is close when the illegality is made to turn on
intent, not on the nature of the act. We then start probing men’s minds for
motive and purpose; they become entangled in the law not for what they did but for what they thought; they get convicted not
for what they said but for the purpose with which they said it.
Intent, of course, often makes the difference in the law. An act
otherwise excusable or carrying minor penalties may grow to an abhorrent thing
if the evil intent is present. We deal here, however, not with ordinary acts
but with speech, to which the Constitution has given a special sanction.
*584 The
vice of treating speech as the equivalent of overt acts of a treasonable or
seditious character is emphasized by a concurring opinion, which by invoking
the law of conspiracy makes speech do service for deeds which are dangerous to
society. The doctrine of conspiracy has served divers and oppressive purposes
and in its broad reach can be made to do great evil. But never until today has
anyone seriously thought that the ancient law of conspiracy could constitutionally
be used to turn speech into seditious conduct. Yet that is precisely what is
suggested. I repeat that we deal here with speech alone, not with speech plus
acts of sabotage or unlawful conduct. Not a single seditious act is charged in
the indictment. To make a lawful speech unlawful because two men conceive it is
to raise the law of conspiracy to appalling proportions. That course is to make
a radical break with the past and to violate one of the cardinal principles of
our constitutional scheme.
**905 Free
speech has occupied an exalted position because of the high service it has given our society. Its
protection is essential to the very existence of a democracy. The airing of
ideas releases pressures which otherwise might become destructive. When ideas compete
in the market for acceptance, full and free discussion exposes the false and
they gain few adherents. Full and free discussion even of ideas we hate
encourages the testing of our own prejudices and preconceptions. Full and free
discussion keeps a society from becoming stagnant and unprepared for the
stresses and strains that work to tear all civilizations apart.
Full and free discussion has indeed been the first article of our
faith. We have founded our political system on it. It has been the safeguard of
every religious, political, philosophical, economic, and racial group amongst
us. We have counted on it to keep us from embracing what is cheap and false; we
have trusted the common sense of our *585 people to choose the doctrine
true to our genius and to reject the rest. This has been the one single
outstanding tenet that has made our institutions the symbol of freedom and
equality We have deemed it more costly to liberty to suppress a despised
minority than to let them vent their spleen. We have above all else feared the
political censor. We have wanted a land where our people can be exposed to all
the diverse creeds and cultures of the world.
There comes a time when even speech loses its constitutional
immunity. Speech innocuous one year may at
another time fan such destructive flames that it must be halted in the
interests of the safety of the Republic. That is the meaning of the clear and
present danger test. When conditions are so critical that there will be no time
to avoid the evil that the speech threatens, it is time to call a halt.
Otherwise, free speech which is the strength of the Nation will be the cause of
its destruction.
Yet free speech is the rule, not the exception. The restraint to
be constitutional must be based on more than fear, on more than passionate
opposition against the speech, on more than a revolted dislike for its
contents. There must be some immediate injury to society that is likely if
speech is allowed. The classic statement of these conditions was made by Mr.
Justice Brandeis in his concurring opinion in Whitney v. People of State of
California, 274 U.S. 357, 376--377, 47 S.Ct. 641 648,
649, 71 L.Ed. 1095.
‘Fear of serious injury cannot alone justify suppression of free
speech and assembly. Men feared witches and burnt women. It is the function of
speech to free men from the bondage of irrational fears. To justify suppression
of free speech there must be reasonable ground to fear that serious evil will
result if free speech is practiced. There must be reasonable ground to believe
that the danger apprehended *586 is imminent. There must be reasonable
ground to believe that the evil to be prevented is a serious one. Every
denunciation of existing law tends in some
measure to increase the probability that there will be violation of it. Condonation of a breach enhances the probability.
Expressions of approval add to the probability. Propagation of the criminal
state of mind by teaching syndicalism increases it. Advocacy of law-breaking
heightens it still further. But even advocacy of violation, however
reprehensible morally, is not a justification for denying free speech where the
advocacy falls short of incitement and there is nothing to indicate that the
advocacy would be immediately acted on. The wide difference between advocacy
and incitement, between preparation and attempt, between assembling and
conspiracy, must be borne in mind. In order to support a finding of clear and
present danger it must be shown either that immediate serious violence was to
be expected or was advocated, or that the past conduct furnished reason to
believe that such advocacy was then contemplated.
‘Those who won our independence by revolution were not cowards.
They did notfear political change. They did not **906
exalt order at the cost of liberty. To courageous, self-reliant men, with
confidence in the power of free and fearless reasoning applied through the
processes of popular government, no danger flowing from speech can be deemed
clear and present, unless the incidence of the evil apprehended is so imminent
that it may befall before there is opportunity for full discussion. If there be
time to expose through discussion the
falsehood and fallacies, to avert the evil by the processes of education, the
remedy to be applied is more speech, not enforced silence.’ (Italics added.)
*587 I had
assumed that the question of the clear and present danger, being so critical an
issue in the case, would be a matter for submission to the jury. It was
squarely held in Pierce v. United States, 252 U.S. 239, 244, 40 S.Ct. 205, 208, 64 L.Ed. 542, to
be a jury question. Mr. Justice Pitney, speaking for the Court, said, ‘Whether
the statement contained in the pamphlet had a natural tendency to produce the
forbidden consequences, as alleged, was a question to be determined not upon
demurrer but by the jury at the trial.’ That is the only time the Court has
passed on the issue. None of our other decisions is contrary. Nothing said in
any of the nonjury cases has detracted from that
ruling. [FN4] The statement in Pierce v. United
States, supra, states the law as it has been and as it should be. The Court, I
think, errs when it treats the question as one of law.
FN4.
The cases which reached the Court are analyzed in the Appendix attached to this
opinion 341 U.S. 591, 71 S.Ct. 908.
Yet, whether the question is one for the Court or the jury, there
should be evidence of record on the issue.
This record, however, contains no evidence whatsoever showing that the acts
charged viz., the teaching of the Soviet theory of revolution with the hope
that it will be realized, have created any clear and present danger to the
Nation. The Court, however, rules to the contrary. It says, ‘The formation by
petitioners of such a highly organized conspiracy, with rigidly disciplined
members subject to call when the leaders, these petitioners, felt that the time
had come for action, coupled with the inflammable nature of world conditions,
similar uprisings in other countries, and the touch-and-go nature of our
relations with countries with whom petitioners were in the very least
ideologically attuned, convince us that their convictions were justified on
this score.’
That ruling is in my view not responsive to the issue in the case.
We might as well say that the speech of *588 petitioners is outlawed
because Soviet Russia and her Red Army are a threat to world peace.
The nature of Communism as a force on the world scene would, of
course, be relevant to the issue of clear and present danger of petitioners’
advocacy within the United States. But the primary consideration is the
strength and tactical position of petitioners and their converts in this
country. On that there is no evidence in the record. If we are to take judicial
notice of the threat of Communists within the nation, it should not be
difficult to conclude that as a political
party they are of little consequence. Communists in this country have never
made a respectable or serious showing in any election. I would doubt that there
is a village, let alone a city or county or state, which the Communists could
carry. Communism in the world scene is no bogey-man; but Communism as a
political faction or party in this country plainly is. Communism has been so
thoroughly exposed in this country that it has been crippled as a political
force. Free speech has destroyed it as an effective political party. It is
inconceivable that those who went up and down this country preaching the
doctrine of revolution which petitioners espouse would have any success. In
days of trouble and confusion, when bread lines were long, when the unemployed
walked the streets, when people were starving, the advocates of a short-cut by
revolution might have a chance to gain adherents. But today there are no such
conditions. The country is not in despair; the people know Soviet Communism;
the doctrine of Soviet revolution **907 is exposed in all of its
ugliness and the American people want none of it.
How it can be said that there is a clear and present danger that
this advocacy will succeed is, therefore, a mystery. Some nations less resilient
than the United States, where illiteracy is high and where democratic
traditions are only budding, might have to take drastic *589 steps and
jail these men for merely speaking their creed. But in America they are
miserable merchants of unwanted ideas;
their wares remain unsold. The fact that their ideas are abhorrent does not
make them powerful.
The political impotence of the Communists in this country does
not, of course, dispose of the problem. Their numbers; their positions in
industry and government; the extent to which they have in fact infiltrated the
police, the armed services, transportation, stevedoring, power plants,
munitions works, and other critical places--these facts all bear on the
likelihood that their advocacy of the Soviet theory of revolution will endanger
the Republic. But the record is silent on these facts. If we are to proceed on
the basis of judicial notice, it is impossible for me to say that the
Communists in this country are so potent or so strategically deployed that they
must be suppressed for their speech. I could not so hold unless I were willing
to conclude that the activities in recent years of committees of Congress, of
the Attorney General, of labor unions, of state legislatures, and of Loyalty
Boards were so futile as to leave the country on the edge of grave peril. To
believe that petitioners and their following are placed in such critical
positions as to endanger the Nation is to believe the incredible. It is safe to
say that the followers of the creed of Soviet Communism are known to the
F.B.I.; that in case of war with Russia they will be picked up overnight as
were all prospective saboteurs at the commencement of World War II; that the
invisible army of petitioners is the best
known, the most beset, and the least thriving of any fifth column in history.
Only those held by fear and panic could think otherwise.
This is my view if we are to act on the basis of judicial notice.
But the mere statement of the opposing views indicates how important it is that
we know the facts before we act. Neither prejudice nor hate nor senseless *590
fear should be the basis of this solemn act. 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 this 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 First Amendment provides that ‘Congress shall make no law * * *
abridging the freedom of speech’. The Constitution provides no exception. This
does not mean, however, that the Nation need hold its hand until it is in such
weakened condition that there is no time to protect itself from incitement to
revolution. Seditious conduct can always be punished. But the command of the
First Amendment is so clear that we should not allow Congress to call a halt to
free speech except in the extreme case of peril from the speech itself. The
First Amendment makes confidence in the common sense of our people and in their
maturity of judgment the great postulate of our democracy. Its philosophy is that violence is rarely, if ever, stopped by
denying civil liberties to those advocating resort to force. The First
Amendment reflects the philosophy of Jefferson ‘that it is time enough for the
rightful purposes of civil government, for its officers to interfere when
principles break out into overt acts against peace and good order.’ [FN5] The political censor has no place in our
public debates. Unless and until extreme and necessitous circumstances are **908
shown our aim should be to keep speech unfettered and to allow the processes *591
of law to be invoked only when the provocateurs among us move from speech to
action.
FN5.
12 Hennings Stat. (Virginia 1823), c. 34, p. 84.
Whipple, Our Ancient Liberties (1927), p. 95, states: ‘This idea that the limit
on freedom of speech or press should be set only by an actual overt act was not
new. It had been asserted by a long line of distinguished thinkers including
John Locke, Montesquieu in his The Spirit of the Laws (‘Words do not constitute
an overt act’), the Rev. Phillip Furneaux, James
Madison, and Thomas Jefferson.’
Vishinsky wrote in 1938 in The Law of the Soviet
State, ‘In our state, naturally, there is and can be no place for freedom of
speech, press, and so on for the foes of
socialism.’
Our concern should be that we accept no such standard for the
United States. Our faith should be that our people will never give support to
these advocates of revolution, so long as we remain loyal to the purposes for
which our Nation was founded.
Appendix to Opinion of Mr. Justice Douglas
There have been numerous First Amendment cases before the Court
raising the issue of clear and present danger since Mr. Justice Holmes first
formulated the test in Schenck v. United States, 249
U.S. 47, 52, 39 S.Ct. 247, 249, 63 L.Ed. 470. Most of them, however, have not involved jury
trials.
The cases which may be deemed at all relevant to our problem can
be classified as follows:
Convictions for contempt of court (nonjury):
Near v. State of Minnesota, 283 U.S. 697, 51 S.Ct.
625, 75 L.Ed. 1357; Bridges v. State of California,
314 U.S. 252, 62 S.Ct. 190, 86 L.Ed.
192; Thomas v. Collins, 323 U.S. 516, 65 S.Ct. 315,
89 L.Ed. 430; Pennekamp v.
State of Florida, 328 U.S. 331, 66 S.Ct. 1029, 90 L.Ed. 1295; Craig v. Harney, 331 U.S. 367, 67 S.Ct. 1249, 91 L.Ed. 1546.
Convictions by state courts sitting without juries, generally for
violations of local ordinances: Lovell v. City of Griffin, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949; Schneider v. State, 308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. 155; Cantwell
v. State of Connecticut, 310 U.S. 296, 60 S.Ct. 900,
84 L.Ed. 1213; Marsh v. State of Alabama, 326 U.S.
501, 66 S.Ct. 276, 90 L.Ed.
265; Tucker v. State of Texas, 326 U.S. 517, 66 S.Ct.
274, 90 L.Ed. 274; Winters v. People of State of New
York, 333 U.S. 507, 68 S.Ct. 665, 92 L.Ed. 840; Saia v. People of
State of New York, 334 U.S., 558, 68 S.Ct. 1148, 92 L.Ed. 1574; Kovacs v. Cooper, 336 U.S. 77, 69 S.Ct. 448, 93 L.Ed. 513; Kunz v.
People of State of New York, 340 U.S. 290, 71 S.Ct.
312; Feiner v. People of State of New York, 340 U.S.
315, 71 S.Ct. 303.
Injunctions against enforcement of state or local laws (non-jury):
Grosjean v. American Press Co., 297 *592 U.S.
233, 56 S.Ct. 444, 80 L.Ed.
660; Hague v. C.I.O., 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423; Minersville School District v. Gobitis, 310 U.S. 386, 60 S.Ct.
1010, 84 L.Ed. 1375; West Virginia State Board of
Education v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628.
Administrative proceedings (non-jury): Bridges v. Wixon, 326 U.S. 135, 65 S.Ct.
1443, 89 L.Ed. 2103; Schneiderman
v. United States, 320 U.S. 118, 63 S.Ct. 1333, 87 L.Ed. 1796; American Communications Association v. Douds, 339 U.S. 382, 70 S.Ct.
674, 94 L.Ed. 925.
Cases tried before juries for violations of state laws directed
against advocacy of anarchy, criminal
syndicalism, etc.: Gilbert v. State of Minnesota, 254 U.S. 325, 41 S.Ct. 125, 65 L.Ed. 287; Gitlow v. People of State of New York, 268 U.S. 652, 45 S.Ct. 625, 69 L.Ed. 1138; Whitney
v. People of State of California, 274 U.S. 357, 47 S.Ct.
641, 71 L.Ed. 1095; Fiske
v. State of Kansas, 274 U.S. 380, 47 S.Ct. 655, 71 L.Ed. 1108; Stromberg v. People of State of California, 283
U.S. 359, 51 S.Ct. 532, 75 L.Ed.
1117; De Jonge v. State of Oregon, 299 U.S. 353, 57 S.Ct. 255, 81 L.Ed. 278; Herndon
v. Lowry, 301 U.S. 242, 57 S.Ct. 732, 81 L.Ed. 1066; Taylor v. State of Mississippi, 319 U.S. 583,
63 S.Ct. 1200, 87 L.Ed.
1600; or for minor local offenses: Cox v. State of New Hampshire, 312 U.S. 569,
61 S.Ct. 762, 85 L.Ed.
1049; Chaplinsky v. State of New Hampshire, 315 U.S. **909
568, 62 S.Ct. 766, 86 L.Ed.
1031; Terminiello v. City of Chicago, 337 U.S. 1, 69 S.Ct. 894, 93 L.Ed. 1131; Niemotko v. State of Maryland, 340 U.S. 268, 71 S.Ct. 325.
Federal prosecutions before juries under the Espionage Act of 1917
following World War I: Schenck v. United States, 249
U.S. 47, 39 S.Ct. 247, 63 L.Ed.
470; Frohwerk v. United States, 249 U.S. 204, 39 S.Ct. 249, 63 L.Ed. 561; Debs v.
United States, 249 U.S. 211, 39 S.Ct. 252, 63 L.Ed. 566; Abrams v. United States, 250 U.S. 616, 40 S.Ct. 17, 63 L.Ed. 1173; Schaefer
v. United States, 251 U.S. 466, 40 S.Ct. 259, 64 L.Ed. 360; Pierce v. United States, 252 U.S. 239, 40 S.Ct.
205, 64 L.Ed. 542. Pierce v. United States ruled that
the question of clear and present danger was for the jury. In the other cases
in this group the question whether the issue was for the court or the jury was
not raised or passed upon.
Federal prosecution before a jury under the Espionage Act of 1917
following World War II: Hartzel v. United States, 322
U.S. 680, 64 S.Ct. 1233, 88 L.Ed.
1534. The jury was instructed on clear and present danger in terms drawn from
the language of Mr. Justice Holmes in Schenck v.
United States, supra, 249 U.S. at page 52, 39 S.Ct.
at page 249, 63 L.Ed. 470. The Court reversed the
conviction on the ground that there had not been sufficient evidence for
submission of the case to the jury.
71 S.Ct. 857, 341 U.S. 494, 95 L.Ed. 1137
[1] FN1. Following the dissolution of
the Communist International in 1943, the Communist Party of the United States
dissolved and was reconstituted as the
Communist Political Association. The program of this Association was one of
cooperation between labor and management, and, in general, one designed to
achieve national unity and peace and prosperity in the post-war period.