DENNIS ET AL. v.
UNITED STATES
341
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
Sections 2 and 3 of the Smith Act,
54 Stat. 671, 18
"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 [***1146]
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 § 2 of the Smith Act proscribes these acts and
that any conspiracy to take such action is a violation of § 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-Leninist [*498] 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, n1 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, [***1147] 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.
n1 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.
[*499]
I.
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
[***HR2] 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 § 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 of
congressional desire that intent not be made an element of the crime than the
use of the disjunctive "knowingly or willfully" in § 2 (a) (1), or the omission of exact language
in § 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, 341
U.S. 97, 101-102 (1951); Screws v. United States, 325 U.S. 91,
101-105 (1945); Cramer v. United States, 325 U.S. 1, 31 (1945).
[***HR3] [***HR4]
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 Assn. v. Douds,
339
[***HR5] 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, [***1148]
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
n2 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,
318 U.S. 189 (1943), although petitioners themselves requested a charge similar
to the one given, and under Rule 30 of the Federal Rules of Criminal Procedure
would appear to be barred from raising this point on appeal. Cf. Boyd
v.
[*501]
[**863] II.
[***HR6] [***HR7]
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
[***HR8] [***HR9]
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 Assn. v. Douds, 339
[***HR10] 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 or university a course
explaining [***1149] 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.
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 of 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.
n3 Toledo Newspaper Co. v.
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, 249 U.S. 204 (1919) -- publication of twelve newspaper articles
attacking the war; Debs v. United States, 249 U.S. 211 (1919) --
one speech attacking United States' participation in the war; Abrams v. United
States, 250 U.S. 616 (1919) --
[**865] circulation of copies of
two different socialist circulars attacking the war; Schaefer v. United
States, 251 U.S. 466 (1920) -- publication of a German-language newspaper
with allegedly false articles, critical of capitalism and the war; Pierce
v. United States, 252 U.S. 239 (1920) -- 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 627. And in Schaefer the test was
said to be one of "degree," 251 U.S. at 482, although it is not clear
whether "degree" refers to clear and present danger or evil. Perhaps
both were meant.
[***HR11] 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 n4 before
the Court in which free speech was the crux of the conflict was Gitlow
v. New York, 268 U.S. 652 (1925). 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
[***1151] 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. California, 274
U.S. 357 (1927), 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.
n4 Cf. Gilbert
v. Minnesota, 254 U.S. 325 (1920).
[***HR12] 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. n5 And in American Communications Assn. v. Douds,
supra, we were called upon to decide the validity of § 9 (h) of the Labor Management Relations Act
of 1947. 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 belief, 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 [***1152]
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 412. 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 American
Communications Assn. v. Douds, 339 U.S. at 397. [**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.
n5 Contempt of court: Craig v. Harney,
331 U.S. 367, 373 (1947); Pennekamp v. Florida, 328 U.S. 331,
333-336 (1946); Bridges v. California, 314 U.S. 252, 260-263
(1941).
Validity of state statute: Thomas v. Collins, 323 U.S. 516, 530 (1945); Taylor
v. Mississippi, 319 U.S. 583, 589-590 (1943); Thornhill v. Alabama,
310 U.S. 88, 104-106 (1940).
Validity of local ordinance or regulation: West
Virginia Board of Education v. Barnette,
319 U.S. 624, 639 (1943); Carlson v. California, 310 U.S. 106,
113 (1940).
Common law offense: Cantwell v. Connecticut, 310 U.S. 296, 308, 311 (1940).
[***HR13] 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, 308 U.S. 147
(1939); Cantwell v. Connecticut, 310 U.S. 296 (1940); Martin
v. Struthers, 319 U.S. 141 (1943); West Virginia Board of Education
v. Barnette, [*509] 319 U.S. 624 (1943); Thomas v. Collins,
323 U.S. 516 (1945); Marsh v. Alabama, 326 U.S. 501 (1946); but
cf. Prince v. Massachusetts,
321 U.S. 158 (1944); Cox v. New Hampshire, 312 U.S. 569 (1941).
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.
[***HR14] [***HR15]
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
[***1153] 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. Kansas, 274 U.S.
380 (1927), and De Jonge v. Oregon, 299 U.S. 353 (1937); but
cf. Lazar v. Pennsylvania,
286 U.S. 532 (1932). 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]
[***HR16] 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.
[***HR17] [***HR18]
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 [***1193] 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, 328 U.S. 640 (1946); Goldman v. United
States, 245 U.S. 474 (1918); United States v. Rabinowich, 238
U.S. 78 (1915). If the ingredients of the reaction are present, we cannot bind
the Government to wait until the catalyst is added.
IV.
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:
" [***1154] 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 § § 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.
[***HR19] 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. n6 [***1155]
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. n7 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. n8 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.
n6 "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 379.
n7 "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." 252
U.S. 239, 250 (1920).
n8 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. 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.
[***HR20] 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.
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,
250 U.S. 616, 627-629 (1919) (dissenting opinion); Whitney v. California,
274 U.S. 357, 373 (1927) (concurring opinion); Taylor v. Mississippi,
319 U.S. 583, 589 (1943). A claim of guilelessness ill becomes those with evil
intent. Williams v. United
States, 341 U.S. 97, 101-102 [***1156]
(1951); Jordan v. De George, 341 U.S. 223, 230-232 (1951);
American Communications Assn. v. Douds, 339 U.S. at 413; Screws
v. United States, 325 U.S. 91, 101 (1945).
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, at 101-102; Jordan, supra, at 230-232; United States
v. Petrillo, 332 U.S. 1, 7 (1948); United States v. Wurzbach,
280 U.S. 396, 399 (1930); Nash v. United States, 229 U.S. 373,
376-377 (1913). [**871] 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.
We hold that § § 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.
MR. JUSTICE CLARK took no part in
the consideration or decision of this case.
CONCURBY:
FRANKFURTER; JACKSON
CONCUR:
MR. JUSTICE FRANKFURTER,
concurring in affirmance of the judgment.
The defendants were convicted
under § 3 of the Smith Act for
conspiring to violate § 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,
§ 2 (a) (3), 54 Stat. 670, 671, 18 U. S.
C. § 10, now 18 U. S. C. [***1157]
§ 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 § § 2 and 3 of the Smith Act, inherently and as
applied, violated the First and Fifth Amendments. 340 U.S. 863. 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. 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. [***1158] " Chief Justice Marshall in Cohens
v. Virginia, 6 Wheat. 264, 414. 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 . . . ." Chinese Exclusion Case,
130 U.S. 581, 606. See also De Lima v. Bidwell, 182 U.S. 1; Mackenzie
v. Hare, 239 U.S. 299; Missouri v. Holland, 252 U.S. 416; United
States v. Curtiss-Wright Corp., 299 U.S. 304. 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. 457, 554, 556; [**873] and see In re Debs, 158 U.S. 564, 582.
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. 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 [***1159] 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. n1 The Pennsylvania Constitution of 1790 and the Delaware
Constitution of 1792 expressly imposed liability for abuse of the right of free
speech. n2 Madison's own State put on its books in 1792 a statute confining the
abusive exercise of the right of utterance. n3 And it deserves to be noted that
in writing to John Adams'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. n4
n1 Mass. Const., 1780, Part I, Art. XVI. See Duniway, Freedom of the Press in
Massachusetts, 144-146.
n2 Pa. Const., 1790, Art. IX, § 7; Del. Const., 1792, Art. I, § 5.
n3 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.
n4 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 control 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 § 1 of the Act.
The argument against the validity of §
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. First, Part Second,
Note G.
[*523]
[***1160] 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 ten 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. 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. Absolute rules
would inevitably lead to absolute exceptions, and such exceptions would
eventually corrode the rules. n5 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.
n5 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 [***1161] 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. Sinking-Fund
Cases, 99 U.S. 700, 718; Mugler v. Kansas, 123 U.S. 623,
660-661; United States v. Carolene Products Co., 304 U.S. 144. 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. Cohen
Grocery Co., 255 U.S. 81.
[*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. 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 Burns Baking Co.
v. Bryan, 264 U.S. 504, 534.
A generation ago this distribution
of responsibility would not have been questioned. See Fox v. Washington, 236 U.S.
273; Meyer v. Nebraska, 262 U.S. 390; Bartels v. Iowa,
262 U.S. 404; cf. New York ex rel.
Bryant v. Zimmerman, 278 U.S. 63. 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 (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 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." Thomas v. Collins,
323 U.S. 516, 530. 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, n. 4, and it has been
weightily reiterated that freedom of speech has a "preferred
position" among constitutional safeguards.
Kovacs v. [***1162] Cooper, 336 U.S. 77, 88.
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. n6 It is on this body of the Court's
pronouncements that the defendants' argument here is based.
n6 In Hartzel v. United States, 322 U.S.
680, 687, 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. 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, post,
p. 556.
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. Virginia, 6 Wheat. 264, 442;
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.
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
[***1163] interests in six
different types of cases. n7
n7 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. Labor
Board, 301 U.S. 103; Valentine v. Chrestensen, 316 U.S. 52; Railway
Express Agency v. New York, 336 U.S. 106; Lewis Publishing Co.
v. Morgan, 229 U.S. 288. We recognized that restrictions on speech were
involved in United States ex rel. Milwaukee Publishing Co. v. Burleson,
255 U.S. 407, and Gilbert v. Minnesota, 254 U.S. 325; 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. California, 283 U.S. 359, and Winters
v. New York, 333 U.S. 507, 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. Maryland, 340 U.S.
268, 273. 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. Alabama, 310 U.S. 88. 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, or reasonably to limit the area of industrial
strife, Carpenters & Joiners Union v. Ritter's Cafe, 315 U.S.
722; cf. Bakery & Pastry Drivers
Local v. Wohl, 315 U.S. 769. 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; we sustained
restrictions designed to encourage self-employed persons, International
Brotherhood of Teamsters Union v. Hanke, 339 U.S. 470; and to
prevent racial discrimination, Hughes v. Superior Court, 339 U.S.
460. 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; Cafeteria Employees
Union v. Angelos, 320 U.S. 293. 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. [***1164]
Turner v. Williams, 194 U.S. 279, 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. "As 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 294. In Schneiderman
v. United States, 320 U.S. 118, and Bridges v. Wixon, 326
U.S. 135, 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; Near v. Minnesota, 283 U.S. 697.
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. Florida, 328 U.S. 331, 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. California,
314 U.S. 252, 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. Colorado,
205 U.S. 454, 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, held that the Fourteenth Amendment
protected "strong," "intemperate," "unfair"
criticism of the way an elected lay 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 Assn. v. Douds, 339 U.S. 382, 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
[***1165] 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 § 9 (h) pose continuing
threats to that public interest when in positions of union
leadership." [*533] 339 U.S. at 400. On balance, we decided that
the legislative judgment was a permissible one. n8
n8 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 Board of Education
v. Barnette, 319 U.S. 624.
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
277-278. 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, 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,
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 209. In Debs v. United
States, 249 U.S. 211, 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.
[***1166] " Frohwerk
v. United States, supra, at 206. "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, at 52. 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, at 216.
[*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,
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, 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, 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, were involved, that they were "puny
anonymities," 250 U.S. at 629, "impotent to produce the evil against
which the statute aimed," 251 U.S. 493,
[*536] 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. New York, 268 U.S. 652, 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 [***1167] 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 670. 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. California, 274 U.S. 357, 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 371.
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 672-673. Since the
Manifesto circulated by Gitlow "had no chance of starting a present
conflagration," 268 U.S. at 673, they dissented from the affirmance of his
conviction. In Whitney v. 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. n9
n9 Burns v. United States, 274 U.S. 328,
adds nothing to the decision in Whitney v. 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, 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." 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. Kansas, 274 U.S. 380,
involved a [***1168] criminal syndicalism statute similar to that
before us in Whitney v. 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, 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. n10
n10 In Herndon v. Georgia, 295 U.S. 441,
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. New York was raised. See 295
U.S. at 446.
[*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. Oregon, 299 U.S.
353, 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. Mississippi, 319
U.S. 583, 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 589-590.
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. Minnesota,
254 U.S. 325. In other instances we weighted the interest in free speech so heavily
that we permitted essential conflicting values to be destroyed. Bridges v. 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.
[***HR21] 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. [***1169] In some instances we have denied to States
the deference to which I think they are entitled. Bridges v. 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, 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, 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. Alexandria,
post, p. 622, decided this day.
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. New York, supra; Whitney
v. California, supra; American Communications Assn. v. Douds, supra;
cf. Bridges v. California,
314 U.S. at 260. And see Hughes v. Superior Court, supra;
International Brotherhood of Teamsters Union v. Hanke, supra.
In Gitlow v. 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 [***1170] 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 214-215. Our
decision today certainly does not mean that the Smith Act can constitutionally
be applied to facts like those in Gitlow v. 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 52, it would be a distortion, indeed a mockery, of his reasoning to
compare the "puny anonymities," 250 U.S. at 629, 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, 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 391." The phrase "clear and
present danger, [***1171] " 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. Florida, 328 U.S. 331, 350, 352-353 (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. New Hampshire, 315 U.S. 568, 572. We have
frequently indicated that the interest in protecting speech depends on the
circumstances of the occasion. See cases
collected in Niemotko v. Maryland, 340 U.S. at 275-283. 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. 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. 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. California, 283 U.S. at 369. See also Near v. Minnesota,
283 U.S. at 716; De Jonge v. Oregon, 299 U.S. at 365; Cantwell
v. Connecticut, 310 U.S. 296, 308; Taylor v. Mississippi,
319 U.S. at 589.
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, " [***1172] Every idea is
an incitement." 268 U.S. at 673.
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, much 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. n11 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 [***1173] within which the espionage network [**887]
was recruited." n12 The most notorious spy in recent history was
led into the service of the Soviet Union through Communist indoctrination. n13
Evidence supports the conclusion that members of the Party seek and occupy
positions of importance in political and labor organizations. n14 Congress was
not barred by the Constitution from believing that indifference to such
experience would be an exercise not of freedom but of irresponsibility.
n11 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.
n12 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.
n13 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.
n14 See American Communications Assn. v. Douds,
339 U.S. 382. 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]
[***1174] 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. Labor Board, 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.
n15
n15 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, § 19, 39 Stat. 889, 8 U.
S. C. § 155; Act of Oct. 16, 1918, 40
Stat. 1012, 8 U. S. C. § 137; Act of
Oct. 14, 1940, § 305, 54 Stat. 1141, 8
U. S. C. § 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, § 9A, 53 Stat. 1148, 5 U. S. C.
(Supp. III) § 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. § 2386. The Taft-Hartley Act contains a section
designed to exclude Communists from positions of leadership in labor
organizations. Act of June 23, 1947,
§ 9 (h), 61 Stat. 146, 29 U. S. C.
(Supp. III) § 159 (h). And, most recently, the McCarran Act requires
registration of "Communist-action" and "Communist-front"
organizations. Act of Sept. 23, 1950,
§ 7, 64 Stat. 987, 993.
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 [***1175]
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 representatives. 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
[***1176] 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 [***1177]
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 undercurrents [**891]
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. Alabama, 310 U.S. 88, 104-105 (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. . . .
". . . No 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. California, 314 U.S. 252, 262-263 (convictions
for contempt of court reversed): ". . . The '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]; Abrams v. United States, 250
U.S. 616; under a criminal syndicalism act, Whitney v. California,
supra [274 U.S. 357]; under an 'anti-insurrection' act, Herndon v. Lowry,
supra [301 U.S. 242]; and for breach of the peace at common law, Cantwell
v. Connecticut, supra [310 U.S. 296].
And very recently we have also suggested that 'clear and present danger'
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.' [***1178] Thornhill v. Alabama, 310 U.S.
88, 105.
. . . .
"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 Board of Education v. Barnette, 319 U.S.
624, 639 (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 (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, 308 U.S.
147; Cantwell v. Connecticut, 310 U.S. 296; Prince v. Massachusetts,
321 U.S. 158. 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.
"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 occasion for permissible limitation."
[*560]
5. Craig v. Harney,
331 U.S. 367, 376 [***1179] (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
(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. Chicago,
337 U.S. 1, 4-5 [**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. New Hampshire,
supra, [315 U.S. 568] 571-572, 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. California,
314 U.S. 252, 262; Craig v. Harney, 331 U.S. 367, 373. 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 Assn.
v. Douds, 339 U.S. 382, 396, 412 ("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
never-ending, 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. n1
n1 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
[***1180] 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, n2 [**894]
which lags at least two generations behind Communist Party techniques.
n2 The Government says this Act before us was modeled
after the New York Act of 1909, sustained by this Court in Gitlow v. New
York, 268 U.S. 652. 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, § 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, § 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. California, 274
U.S. 357, 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. n3 Anarchism's sporadic and
uncoordinated acts of terror were not integrated with an effective
revolutionary machine, but the Chicago Haymarket riots of 1886, n4 attempted
murder of the industrialist Frick, attacks on state officials, and [*563]
assassination of President McKinley in 1901, were fruits of its
preaching.
n3 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.
n4 Spies v. Illinois, 122 Ill. 1, 12 N.
E. 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, n5 appears today as a closed system of thought representing
Stalin's [*564] [***1181]
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.
n5 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. n6 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.
n6 For methods and objects of infiltration of labor
unions, see American Communications Assn. v. Douds, 339 U.S. 382,
422.
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 its destiny. n7 [*566]
[***1182] But Communist
technique in the overturn of a free
government was disclosed by the coup d'etat in which they seized power
in Czechoslovakia. n8 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.
n7 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.
n8 Duchacek, The Strategy of Communist Infiltration:
Czechoslovakia, 1944-1948, World Politics, Vol. II, No. 3 (April 1950),
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, 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 stratagem 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, n9 reiterated and refined by him and Mr. Justice Brandeis in later cases,
n10 all arising before the era of World
[***1183] 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 farfetched [*568]
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.
n9 Schenck v. United States, 249 U.S.
47. 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 purpose 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.
n10 Gitlow v. New York, 268 U.S. 652; Whitney
v. California, 274 U.S. 357. 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" n11 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 gather, 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 and has meaning where a
conviction is sought to be based on a speech or writing which does not directly
or explicitly 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. n12 Unless we are to hold our
[***1184] Government captive in a
judge-made verbal trap, we must approach the problem of a well-organized,
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.
n11 So characterized by Mr. Justice Brandeis in Schaefer
v. United States, 251 U.S. 466, 482.
n12 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. California, 274 U.S. 357, 376 and 377, 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. California, 314 U.S. 252, 263.
(Italics supplied.)
Schneiderman
v. United States, 320 U.S. 118, 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., at 139, 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.,
at 157. 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, 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.
I think reason is lacking for
applying that test to this case.
[*570]
[**898] 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:
". . . The 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. 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, 206.
The same doctrine was earlier
stated in Fox v. Washington, 236 U.S. 273, 277, and that case was
recently and with approval cited in Giboney v. Empire Storage &
Ice Co., 336 U.S. 490, 502.
As aptly stated by Judge Learned
Hand in Masses Publishing Co. v.
[***1185] Patten, 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. n13
n13 These dangers were more fully set out in Krulewitch
v. United States, 336 U.S. 440, 445.
[*573]
[***HR22] 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, "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. . . ."
[***HR23] 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, § 8 (b), 29 U. S. C. § 158 (b).
[***HR24] 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 [***1186] 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." n14
n14 Miller on Criminal Law, 110. Similar reasons have been reiterated by this
Court. United States v. Rabinowich,
238 U.S. 78, 88; Pinkerton v. United States, 328 U.S. 640,
643-644.
[**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.
[***HR25] 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 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. Reiterated, United States v. Socony-Vacuum Oil Co., 310
U.S. 150, 252. 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]
[***HR26] 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
[***1187] 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.
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. 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.
[***HR27] 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 [***1188]
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, n15 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. n16 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.
n15 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.
n16 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.
DISSENTBY:
BLACK; DOUGLAS
DISSENT:
MR. JUSTICE BLACK, dissenting.
Here again, as in Breard v.
Alexandria, post, p. 622, decided this day, 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.
[***1189] I would hold § 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. California, 314 U.S. 252, 263.
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 [***1190]
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. n1
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. n2 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.
n1 18 U. S. C. §
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."
n2 54 Stat. 671, 18 U. S. C. § § 10, 11.
[**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: n3 Stalin, Foundations of Leninism (1924);
Marx and Engels, Manifesto of the Communist Party (1848); Lenin, The State and
Revolution (1917); History of the Communist Party of the Soviet Union (B.)
(1939).
n3 Other books taught were Stalin, Problems of
Leninism, 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 [***1191]
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. California,
274 U.S. 357, 376-377,
[***1192]
"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 not fear 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, 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. n4 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.
n4 The cases which reached the Court are analyzed in
the Appendix attached to this opinion, post, p. 591.
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 bogeyman;
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 [***1194] 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." n5 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.
n5 12 Hening's 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. 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
(NON-JURY): Near v. Minnesota, 283 U.S. 697; Bridges v. California,
314 U.S. 252; Thomas v. Collins, 323 U.S. 516; Pennekamp
v. Florida, 328 U.S. 331; Craig v. Harney, 331 U.S. 367.
[***1195]
CONVICTIONS BY STATE COURTS SITTING WITHOUT JURIES, GENERALLY FOR
VIOLATIONS OF LOCAL ORDINANCES: Lovell
v. Griffin, 303 U.S. 444; Schneider v. State, 308
U.S. 147; Cantwell v. Connecticut, 310 U.S. 296; Marsh v. Alabama,
326 U.S. 501; Tucker v. Texas, 326 U.S. 517; Winters v. New
York, 333 U.S. 507; Saia v. New York, 334 U.S. 558; Kovacs
v. Cooper, 336 U.S. 77; Kunz v. New York, 340 U.S. 290; Feiner
v. New York, 340 U.S. 315.
INJUNCTIONS AGAINST ENFORCEMENT OF
STATE OR LOCAL LAWS (NON-JURY): Grosjean v. American Press Co.,
297 U.S. 233; [*592] Hague v. C. I. O., 307 U.S.
496; Minersville School District v. Gobitis, 310 U.S. 586; West
Virginia Board of Education v. Barnette, 319 U.S. 624.
ADMINISTRATIVE PROCEEDINGS
(NON-JURY): Bridges v. Wixon, 326 U.S. 135; Schneiderman
v. United States, 320 U.S. 118; American Communications Association
v. Douds, 339 U.S. 382.
CASES TRIED BEFORE JURIES FOR
VIOLATIONS OF STATE LAWS DIRECTED AGAINST ADVOCACY OF ANARCHY, CRIMINAL
SYNDICALISM, ETC.: Gilbert v. Minnesota, 254 U.S. 325; Gitlow
v. New York, 268 U.S. 652; Whitney v. California, 274 U.S.
357; Fiske v. Kansas, 274 U.S. 380; Stromberg v. California, 283
U.S. 359; De Jonge v. Oregon, 299 U.S. 353; Herndon v. Lowry,
301 U.S. 242; Taylor v. Mississippi, 319 U.S. 583; or for minor
local offenses: Cox v. New Hampshire, 312 U.S. 569; Chaplinsky
v. New Hampshire, 315 U.S. 568;
[**909] Terminiello v. Chicago,
337 U.S. 1; Niemotko v. Maryland, 340 U.S. 268.
FEDERAL PROSECUTIONS BEFORE JURIES
UNDER THE ESPIONAGE ACT OF 1917 FOLLOWING WORLD WAR I: Schenck v. United
States, 249 U.S. 47; Frohwerk v. United States, 249 U.S. 204;
Debs v. United States, 249 U.S. 211; Abrams v. United
States, 250 U.S. 616; Schaefer v. United States, 251 U.S.
466; Pierce v. United States, 252 U.S. 239. 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. 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, p. 52. The
Court reversed the conviction on the ground that there had not been sufficient
evidence for submission of the case to the jury.