In Dennis v. United States, the U.S. Supreme Court upheld the conviction of eleven national leaders of the Communist Party (CPUSA) under the Smith Act (Alien Registration Act) of 1940 for conspiring to organize the CPUSA to ‘‘teach and advocate the overthrow and destruction of the Government of the United States by force and violence.’’ Dennis was the leading precedent upholding cold war prosecution of communists and others suspected of leftist sympathies during the 1950s.
The Truman administration, led by Attorney General Tom Clark, sought Smith act indictments against the CPUSA leadership in 1948 to fend off Republican criticism that Democrats were lax in ferreting communists out of positions of influence in American life, and also as a way of indirectly promoting Truman’s aggressive and expensive policy of containment of the Soviet Union. The trial before U.S. District Court Judge Harold Medina in New York City was a raucous affair that resulted in convictions of all the defendants, followed by contempt citations of their attorneys. The U.S. Supreme Court upheld those contempt convictions when they were appealed (Sacher v. United States, 343 U.S. 1, 1952; In re Isserman, 345 U.S. 286, 1953). These convictions and subsequent disbarment of some of counsel had a chilling effect on the availability of legal representation for radicals during the cold war.
On appeal of the Smith Act convictions, Chief Judge Learned Hand wrote for the court of appeals panel, affirming the convictions on the basis of a reworked clear-and-present-danger test: ‘‘whether the gravity of the ‘evil,’ discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger.’’ In the case of communists, Hand thought the answer to be clearly in the affirmative because he considered communism to be a mortal menace to American freedom. Under the Hand formula, if the apprehended evil is great enough, its likelihood can be remote and still provide a basis for government censure.
On appeal to the Supreme Court, the justices affirmed by a vote of six to two. (Justice Tom Clark recused himself because of his earlier participation in the case as attorney general.) Chief Justice Fred Vinson wrote the plurality opinion, in which only three other members of the Court joined. (This opinion, despite lacking majority status, is accepted as the opinion for the Court and will be treated as such here.)
Like Judge Hand, Justice Vinson subscribed wholeheartedly to the then prevalent belief that the CPUSA was ‘‘a highly organized conspiracy, with rigidly disciplined members’’ committed to ‘‘overthrow of the Government by force and violence.’’ In this view, the CPUSA had a unique constitutional status, placing it and its members at least partially outside the protections that the First Amendment afforded other political movements.
With those assumptions constituting the foundation of his opinion, the Chief Justice then went on to endorse Judge Hand’s sliding-scale calculus. He applied it in such a way as to permit the federal government to suppress what he called ‘‘advocacy’’ as well as ‘‘incitement.’’ In doing so, he forced freespeech doctrine, and the clear-and-present-danger test in particular, back into its World War I era formulation, which considered a mere bad tendency as within government’s power to crush. Vinson also adopted Justice Felix Frankfurter’s balancing approach (as opposed to Justice Hugo Black’s absolutism), weighing national security against individual liberty to communicate. Security easily won. The Vinson opinion permitted government to go beyond its unquestioned power to suppress actual evils like insurrection and incitement to punish communicative activities that had previously enjoyed some degree of First Amendment protection: advocacy, organizing, and belonging to political groups.
Yet, despite the speech-suppressive result of his holding, in dicta Justice Vinson inconsistently endorsed Justice Oliver Wendell Holmes’s dissent in Gitlow v. New York, 268 U.S. 652 (1925), and Justice Louis D. Brandeis’s concurrence in Whitney v. California (1927), both of which repudiated badtendency readings and provided a wide latitude for political speech. Such incompatibilities in Justice Vinson’s opinion help account for its short-lived actual influence.
Because Vinson’s opinion was only a plurality, the concurrences assumed greater than usual significance. Frankfurter construed away the clear-and-presentdanger test altogether. This required considerable intellectual contortion on his part since he had previously identified himself with Justices Holmes and Brandeis, whose views would have condemned the Dennis result and its doctrine. He dismissed the Holmes/Brandeis vision as ‘‘a sonorous formula,’’ as ‘‘dogmas too inflexible’’ to be applied in the real world, and as merely ‘‘attractive but imprecise words.’’ As a substitute for clear and present danger, now drained of all meaning, Frankfurter substituted balancing, which had the double vice of enhancing judicial power while invariably privileging government authority over freedom of speech.
Justice Robert H. Jackson’s concurrence went even further than Justices Vinson’s and Frankfurter’s in embracing an apocalyptic vision of Communism. From that metajudicial assumption, he derived an unlimited power of government to suppress speech. In his view, communists could claim no effective constitutional protection for their activities.
Justices Black and William O. Douglas dissented, Black expressing the ‘‘hope . . . that in calmer times, when present pressures, passions and fears subside,’’ a later Court would ‘‘restore the First Amendment liberties to the high preferred place’’ they had previously occupied.
Justice Black’s hope was realized seventeen years later in Brandenburg v. Ohio, 395 U.S. 444 (1968), which did in fact reinstate the Holmes/Brandeis reading of clear and present danger to canonical status. Since then political discourse has enjoyed nearly absolute immunity from government suppression. But in the interim, Dennis plowed wide inroads into First Amendment liberties, depriving not only communists but also much of the American Left of freedoms to speak, publish, organize, and agitate enjoyed by all other Americans. It was the major constitutional bulwark of the cold war.
Moreover, though Dennis has been ignored by judges and condemned by academics and civil libertarians since 1968, it has never been overruled. It remains valid precedent, at least technically, available to authorize suppression of the speech, press, and assembly liberties of some feared, loathed, and/or radical group in the future.
WILLIAM M. WIECEK
References and Further Reading
Cases and Statutes Cited