Dennis v. United States 341 U.S. 494 (1951)
DENNIS v. UNITED STATES 341 U.S. 494 (1951)
Eugene Dennis and other high officials of the Communist party had been convicted of violating the alien registration act of 1940 (the Smith Act) by conspiring to advocate overthrow of the government by force and violence. learned hand, writing the Court of Appeals opinion upholding the constitutionality of the act and of the conviction, was caught in a dilemma. He was bound by the Supreme Court's clear and present danger rule, and the government had presented no evidence that Dennis's activities had created a present danger of communist revolution in the United States. Hand, however, believed that courts had limited authority to enforce the first amendment. His solution was to restate the danger test as: "whether the gravity of the evil, discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger." Because Dennis's conspiracy to advocate was linked to a grave evil, communist revolution, he could be punished despite the remote danger of communist revolution. Hand's restatement allowed a court to pay lip service to the danger rule while upholding nearly any government infringement on speech. If the ultimate threat posed by the speech is great enough, the speaker may be punished even though there is little or no immediate threat.
The Supreme Court upheld Dennis's conviction with only Justices hugo l. black and william o. douglas dissenting. Chief Justice fred m. vinson ' s plurality opinion adopted Hand's restatement of the danger rule. At least where an organized subversive group was involved, speakers might be punished so long as they intended to bring about overthrow "as speedily as circumstances would permit."
Justice felix frankfurter's concurrence openly substituted a balancing test for the danger rule, arguing that the constitutionality of speech limitations ultimately depended on whether the government had a weighty enough interest. Congress, he said, surely was entitled to conclude that the interest in national security outweighed the speech interests of those advocating violent overthrow.
Decided at the height of the Cold War campaign against communists, Dennis allied the Court with anticommunist sentiment. No statute would seem more flatly violative on its face of the First Amendment than one that made "advocacy" a crime. Indeed, in yates v. united states (1957) the Court later sought to distinguish between active urging or incitement to revolution, which was constitutionally punishable "advocacy," and abstract teaching of Marxist doctrine, which was constitutionally protected speech.
Defenders of the clear and present danger rule criticize Dennis for abandoning that rule's essential feature, the immediacy requirement. Such commentators see the Court as correcting its Dennis error in brandenburg v. ohio (1969) in which the Court returned to something like "clear and present danger" and placed heavy emphasis on the immediacy requirement. Justices Black and Douglas subsequently treated Dennis as a case applying the clear and present danger rule and thus as an illustration of the failure of the rule to provide sufficient protection for speech and of the need to replace it with the more "absolute" free speech protections urged by alexander meiklejohn. Proponents of balancing applaud Hand's "discounting" formula as one of the roots of the balancing doctrine, although only the most ardent proponents of judicial self-restraint support Frankfurter's conclusion that Congress, not the Court, should do the final balancing.
It is possible to read Dennis, Yates, and Brandenburg together as supporting the following theory. The clear and present danger rule, including a strong immediacy requirement, applies to street-corner speakers; so long as their speech does not trigger immediate serious harms, others will have the opportunity to respond to it in the marketplace of ideas, and the government will be able to prepare protective measures against violence that may follow. However, where organized, subversive groups engage in covert speech aimed at secret preparations that will suddenly burst forth in revolution, the "as speedily as circumstances will permit" test is substituted for the immediacy requirement. Covert speech cannot easily be rebutted in the marketplace of ideas; by the time underground groups pose a threat of immediate revolution, they may be so strong that a democratic government cannot stop them or can do so only at the cost of many lives.
Whether or not the Communist party of Eugene Dennis constituted such a covert, underground group impervious to the speech of others and posing a real threat of eventual revolution, a theory such as this is probably the reason the Smith Act was never declared unconstitutional and Dennis was never overruled although both have been drastically narrowed by subsequent judicial interpretation.
Corwin, Edward S. 1951 Bowing Out Clear and Present Danger. Notre Dame Lawyer 27:325–359.
Mendelson, Wallace 1952 Clear and Present Danger—From Schenk to Dennis. Columbia Law Review 52:313–333.