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D, Dennis v. United States,

Edited By: Kermit L. Hall, James W. Ely Jr., Joel B. Grossman

From: The Oxford Companion to the Supreme Court of the United States (2nd Edition)

Edited By: Kermit L. Hall

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: null; date: 08 August 2020

Dennis v. United States,

341 U.S. 494 (1951), argued 4 Dec. 1950, decided 4 June 1951 by vote of 6 to 2; Vinson for the Court, Black and Douglas in dissent, Clark not participating. In Dennis the Supreme Court affirmed the convictions of eleven Communist party leaders for violation of the *Smith Act. In the process the Court significantly modified the so-called *clear and present danger test.

The section of the statute at issue in Dennis made it a crime to teach or advocate the violent overthrow of any government in the United States, to set up an organization to engage in such teaching or advocacy, or to conspire to teach, advocate, or organize the violent overthrow of any government in the United States. Although the Smith Act was designed to combat the Communist party, because that organization was closely tied to the Soviet Union and because the United States and the U.S.S.R. were allies during *World War II, the government refrained from using the new law against Communists for several years. In the late 1940s, however, Soviet-American relations deteriorated. President Harry Truman, a Democrat, sought to rally public support for an anti-Soviet foreign policy by characterizing this conflict as a struggle between communism and freedom, and Republicans responded by castigating him for ignoring the threat posed by domestic communism. Under intense political pressure to prove that the Truman administration was not soft on communism, Justice Department lawyers obtained indictments on 20 July 1948 charging the members of the Communist party’s national board with violation of the Smith Act’s conspiracy provisions.

A 1949 trial before federal district judge Harold Medina, conducted amid mounting anticommunist hysteria, ended with the conviction of all eleven defendants. This tumultuous, nine-month-long proceeding featured judicial bias, which manifested itself in questionable rulings on the admission and exclusion of evidence, as well as the employment of dubious tactics by both the (p. 259) prosecution and the defense. The convicted Communists appealed their convictions to the Second Circuit Court of Appeals, but it unanimously affirmed them. Judge Learned *Hand’s opinion rebuffed defense attacks on the impartiality of the judge and jury, on the prosecution’s use of informant witnesses, and on Medina’s conduct of the trial. It also rejected the Communists’ contention that the Smith Act was unconstitutional.

The Supreme Court granted *certiorari only on that issue. Hence, the justices did not have before them a complete record of what had gone on at the trial and did not realize how unimpressive the prosecution’s evidence had been. Even if he had known these things, Chief Justice Fred *Vinson, who seldom displayed much sympathy for civil liberties claims, probably would have voted to affirm. He believed the government had to protect itself from Communists and that it dared not wait until their preparations for its overthrow had reached the point of rebellion. The clear and present danger test precluded punishing speech unless it posed an immediate threat of a serious substantive evil. Consequently, Vinson employed a modified version of that principle (now known as the “grave and probable danger” rule), which Judge Hand had developed. “In each case,” Vinson wrote, 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” (p. 510). This rule afforded far less protection to freedom of expression than had the clear and present danger test.

Only three other justices endorsed Vinson’s opinion. Unable to accept what the chief justice had done to the clear and present danger test, Robert *Jackson insisted that it was inapplicable to conspiracies, such as communism, but that the convictions could be sustained because the defendants were guilty of conspiring to overthrow the government. Felix *Frankfurter also concurred, suppressing his distaste for the Smith Act because of his commitment to the principle of *judicial self-restraint. Both Hugo *Black and William O. *Douglas filed vigorous dissents.

The Justice Department interpreted Dennis as authorization for an all-out attack on the Communist party. The Court’s subsequent ruling in *Yates v. United States (1957) thwarted this assault, but Yates neither held the Smith Act unconstitutional nor overruled the 1951 decision. Although Dennis is inconsistent with more recent rulings, the Supreme Court has never repudiated its grave and probable danger rule.

See also communism and cold war; first amendment speech tests; speech and the press.

Michal R. Belknap, Cold War Political Justice: The Smith Act, the Communist Party and American Civil Liberties (1977).

Michal R. Belknap