xt7msb3wtd0h_55 https://exploreuk.uky.edu/dips/xt7msb3wtd0h/data/mets.xml https://exploreuk.uky.edu/dips/xt7msb3wtd0h/data/72m2.dao.xml unknown 166 Cubic Feet 381 document boxes, seven textile items, three map folders, one artwork archival material 72m2 English University of Kentucky The physical rights to the materials in this collection are held by the University of Kentucky Special Collections Research Center.  Contact the Special Collections Research Center for information regarding rights and use of this collection. Frederick Moore Vinson papers Economic stabilization. Elections -- United States -- Congresses. Judges -- Correspondence. Judges -- United States. Judicial opinions Judicial process -- United States Legislators -- Correspondence. New Deal, 1933-1939. World War, 1914-1918 -- Veterans. World War, 1939-1945. Dennis v. USA - no. 336 text Dennis v. USA - no. 336 2019 https://exploreuk.uky.edu/dips/xt7msb3wtd0h/data/72m2/Box_213/Folder_4_8/Multipage6371.pdf 1950 1950 1950 section false xt7msb3wtd0h_55 xt7msb3wtd0h r.



RECEIVED ., __//aai__5r:wm uijmzfi;

~ "kn, Chief Justice ________________

No. 336.—OC'r0BEn TERM, 1950.

Eugene Dennis, John B. “Vil—
liamson, Jacob Staehel, Rob—
ert G. Thompson, Benjamin
J. Davis, Jr., Henry \Vinston,
John Gates, Irving Potash.
Gilbert Green, Carl “Iinter Argument.
and Gus Hall) Petitioners,


On Motion to Postpone

United States of America.
[November ~—, 1950.]

Memorandum by THE CHIEF J ‘si‘ICE.

This is a motion submitted on November 17, 1950, by
petitioners in this case, requesting (a) that a named mem—
ber of the English Bar be permitted to appear and par-
ticipate in the oral argument, and (b) that the oral argu—
ment be postponed from the Oassigned date of December
4 1950 until after January" -2, 1951, so that said counsel
would have ample opportunity to prepaie and also would
have opportunity to fill a court engagement in India
prior to that time.

Our rules provide that even if the United States had
stipulated its willingness to pass the case, in accordance
with petitioners“ motion, such a stipulation would not be
controlling upon this Court. which has the responsibility
for the order of its own docket. Rule 20 (1). The
United States has not concurred in this motion, but has
submitted a memorandum in opposition, impugning peti—
tioners” motives. In the ordinary course of events proper
administration would require that the motion be denied.

This is not a case where petitioners do not have access
to able counsel. If that were so, we would consider it



our duty to assu1e their adequate 1ep1esentation in this
Court. But the fiV e able lawyers whose names appear 011
the brief 011 the merits already submitted (two of whom
have submitted the present motion), haVe been in this
case continuously from petitioners’ arraignments in July,

1948. These lawyers were actiVe participants in the nine
months of trial in the District Court} helping prepare a
record of some 20 Volumes They participated in the
successful application for bail in the Cou1t of Appeals,

in the prosecution of the appeal in that cou1t in the
successful application f01 bail to an Associate Justice of
this Court, in the petition for certiorari, in the brief 011
the merits here. These lawyers haVe not withdrawn from
the case nor do they ask leaVe to do so. They are inti—
mately familiar with this case, from the details of the
record to the broad constitutional questions presented.
I11 their appearances both here and in the Court of Ap—
peals they have made able, concise and lawyerly argu—
ment. Four of their number are members of the Bar of
this Court and several have participated in oral argu—
ments before this Bar. jmmqlserthe petitione1s’

counsel table may lack it. is not short of talent zeal or ‘
' lea1ni11g. VG emphasize that this is not a case which

"presents a request to appoint counsel for a litigant who
cannot obtain competent plofessional assistance; it is
rather a case where we a1e asked to postpone argument
so that a sixth counsel may be pe1mitted to join the the
lawyers who haVe conducted this litigation to the present

Petitioners haVe requested seVeral weeks’ delay to add
British counsel to their staff. They do not propose to
put their case in his hands~the briefs submitted by pres—
ent counsel h 1aVe already shaped his course. They p1 o—
pose only that he will appear and participate in o1al ..
a1gu1nent.“e VV ill be Ulad to hem mnbei of our!



{parent Bar in this case. Whether we will wait for him
is another question.

The reason offered for delay to bring counsel from
overseas is that twenty—four eminent American lawyers
have unexpectedly declined to participate in the case.
The implication sought to be created is that no leading
American counsel dare or will take the case of an admitted
Communist to challenge the Smith Act as unconstitu—
tional. This is a grave indictment of the American Bar,
but the papers before us fall far short of establishing this
charge. The request made to each of the twenty—four
attorneys was that he ”associate himself as counsel for
petitioners on this appeal.” It. is further stated that
“Several of these [leaders of the Bar] expressed the opin-
ion” that petitioners’ convictions should be reversed, and
“all declined to participate in the argument of the appeal,
some saying they did so out of fear that . . . such par—
ticipation might adversely affect their professional stand—
ing and practice.” It is one thing to ask a lawyer to take
responsibility for handling a case, but quite another to
ask him to share time with, and follow the line of other
counsel, who not only have shaped the record, but whose
briefs have necessarily predetermined the 0mm

. The second reason advanced for the requested delay is
that the member of the English Bar petitioners desire
must go to India to fill a court engagement there during
December and January. We need not set forth at great
length the problems an unqualified grant of this motion
would cause, for, from the standpoint of our procedure,
this case presents no different problem than might any

'Eniinent counsel may not be willing to become associated on a
basis where they would either have to loan their name to a litigation
policy and to tactics which they would disapprove, 01' break with
the counsel who dominate the case.

WW.,-—W—'~'~‘ 3;




case where a party with a battery of counsel seeks to add
to a cause other counsel prepared or available on the date
already set by this Court for argument of the cause.

Despite this apparent failure of the motion to state a
substantial ground for the relief requestedfiand the aura“
of dilatory tactics pervading it, we recognize the substan—
‘tial issues involved in the merits of this case and will take
no action which might lend color to the claim that these
petitioners are being deprived of an opportunity to present
their case properly in this Court. We therefore treat this
motion so as to afford the maximum to the petitioners
consistent with the orderly processes of judicial adminis-
tration. lVe grant that part of the motion which pertains
to the participation pro hac vice in oral argument by the
designated member of the English Bar. lVe deny that
part of the motion which requests a postponement.

It is so ordered.




No. 33ti.—(A)C"l‘t)t‘.t£li Tin-2M, 10.30.

Eugene Dennis, John B. William—l
son. Jacob Staehel, lohert G.’
'l‘ltoinpsotn Benjamin J. Davis] . n ., 1 ,’ ,
Jr., Henry lYinston, John I ()1: “In ?f.C01:Jr:m
(ittlt‘S, Irvingr Potash, Gilbert} tothe [flmtmdaleg
(ireen. (furl Winter and Gus! (Unt OI ”139315 1101‘
Hall, Petitioners, tne beeond Circuit.


United States of .tiateriea.
[June 31:19:31.]

Mn. ('iincr Jt's'rtetz Vixsox announced the judgment
of the Court and an opinion in which MR. JUSTICE REED,
Mn. Jt‘sTiei; Bt‘ rrox and Ma. Jt‘sTICE MINTON join.

Petitioners were indicted in July, 1948, for Violation of
the eonspiraey prm'isions of the Smith Act, 5—1 Stat. (371,
18 l'. S. (I (1946 ed.) § 11. during the period Of April,
194."). to July, HHS. The pretrial motion to quash the
indictment on the grounds. infer (the, that the statute was
nneonstitutional was denied. Felted Slates V. Foster, 80 F.
Supp. 47$). and the ease was, set for trial on Januarv 17,
1949. .\ rerdiet of guilty; as to all the petitioners was
returned hy the jury on October 14}, 1945). The Court of
Appeals allirtned the eontie ions. 183 F. 2d 201. “70
granted eertiorari, 340 l7. 5. 8033. limited to the following
two questions: ('1’) Whether either § 2 or § 3 of the Smith
Aet, inherently or as eonstrued and applied in the instant
eztse. \‘iolates the First .v\mendinent and other provisions
of the Bill of Rights; (2') whether either if or 55' 3 of the
.\et. inherently or {is eonstrued and applied in the instant
ease. violates the First and Fifth Amendments because of


 %W22 6; W
flaw/”7 MMWM
a W W 9‘7;


N0. 336.—OCTOBER TERM, 1950.

Eugene Dennis, John B. William-
son, Jacob Stachel, Robert G.
Thompson, Benjamin J. Davis,
Jr., Henry 'Winston, John
Gates, Irving Potash, Gilbert
Green, Carl Winter and Gus
Hall, Petitioners,


United States of America.

On Writ of Certiorari
to the United States
Court of Appeals for
the Second Circuit.

[June 4,1951]

MR CHIEF JUSTICE VINSONLClCliV ered the opinion of
the Court. ' ' 4.»; - ""x /*

Petitioners were indicted in July, 1948, for violatibn of
the conspiracy provisions of the Smith Act 18 U. S. C
(1946 ed. )§ 11 during the period of April 1945 to July,
1948. The pretrial motion to quash the indictment on
the grounds, inter aliaft‘hat the statute was unconstitu-
tional, was denied, United States v. Foster, 80 F. Supp.
479, and the case was set for trial on January 17, 1949. A
verdict of guilty as to all the petitioners was returned by
the jury on October 14, 1949. The Court. of Appeals
affirmed the convictions. 183 F. 2d 201. We granted
certiorari, 340 U. S. 863, limited to the following two ques—
tions: (1) Whether either §2 or §3 of the Smith Act,
inherently or as construed and applied in the instant case,
violates the First Amendment and other provisions of the
Bill of Rights; (2) whether either§ 2 org 33 of the Act, |
inherently or as construed and applied in the instant case,
violates the First and Fifth Amendments because of



Sections 2 and 3 of the Smith Act provide as follows:

“SEC. 2.

“(a) It shall be unlawful for any person——

“(1) to knowingly or wilf1__1_lly advocate, abet, ad-
Vise, or teach the di_1ty, necessity desirability, or pro—
priety of everthrowing or destroying any government
in the United States by force or violence, or by the
assassination of any officer of such government;

“(2) with inte_1__1t to cause the overthrow or destruc—
tion of any government in the United States to print,
publish, edit issue circulate sell distribute, 01 pub—
licly display any written or printed matte1 advocat-
ing, advising, or teaching the duty, necessity, desir—
ability, or propriety of overthrowing or destroying
any gove1nment in the United States by force or

“(3) to organize or help to organize any soci__ety,
g1 oup or assembly of persons who teach, advocate, or
encourage the overthrow or destruction of any gov-
ernment in the United States by force or Violence;
or to be or become a member of, or affiliate with, any
such society, group or assembly of persons, knowing
the p111pose thereof

“(b) For the purpose of this section, the term ‘govern-
ment 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 gov—
ernment of any political subdivision of any of them.
“SEC. 3. It shall be unlawful for any person to at~
tempt 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 knowipgly conspiring Q) to organize as the Com-
munist 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 prescribes 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 g
support the jury’s determination that petitioners are 1
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 con-
clusions 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 111 this countiy, were unwilling to work
within our framework of democracy, bulltmintended to
initiate a violent revolution whenever the p10pit1ous oc-
ca51on appeal ed Petitioners diSpute the meaning to be
drawn from the evidence contending that the Marxist—
Leninist doctrine they advocated taught that force and
p 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

pun.“ 1.. ._V . ..., .v.-.



supports the following broad conclusions: By virtue of 2
their control over the political apparatus of the Com- ;
munist Political Association,1 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 i
worked for the overthrow of the Government by force and ¥
violence; that the Communist Party is a highly disciplined '
organization, adept at infiltration into strategic positions,
use of aliases, and double—meaning language; that the '
Party is rigidly controlled; that Communists, unlike other ,
political parties, tolerate no dissension from the policy laid ,
down by the guiding forces, but that the approved pro— 5‘
gram 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 the period in ques— 1
tion, to achieve a successful overthrow of the existing order
by force and violence.


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 un—
lawful intent before the jury could convict. More spe-
cifically, he charged that the jury could not find the
petitioners guilty under the indictment unless they found

1 Following the dissolution of the Communist International in 1943,
the Communist Party of the United States dissolved and was recon—
stituted as the Communist Political Association. The program of
this Association was one of cooperation between labor and manage-
ment, and, in general, one designed to achieve national unity and
peace and prosperity in the post-war period.



that petitioners had the intent “to overthrow the gov—
ernment by force and violence as speedily as circumstances

Section 2 (a) (1) makes it unlawful “to knowingly or
wilfully advocate, . . . or teach the duty, necessity, desir—
ability or propriety of overthrowing or destroying any gov-
ernment 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 over-
throw 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 indica-
tion of congressional desire that intent not be made an
element of the crime than the use of the disjunctive
“knowingly or wilfully” in §2 (a) (1), or the omission

of exact language in § 2 (a) (3). The structure and pur- l
pose 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 com-
bine 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
Williams V. United States, 341 U. S. 97, 101—102 (1951);
Screws V. United States, 325 U. S. 91, 100-105 (1945);
United Slates V. Cramcr, 325 U. S. 1, 31 (1945).

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 lan—





guage, proof of the existence of a certain mental state, in

words such as “knowingly,” “maliciously,” “wilfully,” i
“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 excep- :
tion to, the principles of Anglo—American criminal juris—
prudence. See American Communications Assn. v. f

Douds, 339 U. S. 382, 411 (1950).

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 ll'illiams, supra, both clearly and severely punishable
under state law, offenses constitutionally punishable by

the Federal Government. In those cases, the Court re— f
quired the Government to prove that the defendants in— 3.
tended 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 Govern- ..
ment of the United States by advocacy thereof is equally 1'

susceptible of proof.2


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, revo—
lution and terrorism. That it is within the power of the
Congress to protect the Government of the United States

3 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. \2 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. United States, 271 U. S. 104 (1926).




from armed rebellion is a proposition which requires little
discussion. 'Whatever theoretical merit there may 6? to
the argument that there 1s a “right” to rebellion against
dictatorial governments is without force where the exist-
ing structure of the government provides for peaceful

and orderly change. We reject any principle of govern— .Jl f

mental helplessness in the face of preparation for revo— .1 l
lution, which principle, carried to its logical conclusion,
must lead to anarchy. No one could conceive that it
is not within the power of Congress to prohibit acts in-
tended to overthrow the Government by force and vio-
lence. The question with which we are concerned here
is not whether Congress has such power, but whether the
means which it has employed conflict with the First and
Fifth Amendments to the Constitution.

One of the bases for the contention that the means
which Congress has employed are invalid takes the form
of an attacl; 011 the face of the statute on the grounds
that by its te1n1s it prohibits academic discussion of the
merits of \Iarxism- Leninism that it stifies 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 legis- “
lation in a manner not inconsistent with the demands
of the Constitution. American. Communications Assn.
v. Douds, 339 U. S. 382, 407 (1950). We are not here
confronted with cases similar to Thorn/till V. Alabama,
310 U. S. 88 (1940); Hcrndon V. Lowry, 301 U. S. 242
(1937); and DcJonge 1'. Oregon, 299 U. S. 353 (1937),
where a state court had given a meaning to a state statute
which was inconsistent with the Federal Constitution.
This 1s a federal statute which we must interpret as well
as judge. Herein lies the fallacy of reliance upon the [
manner in 11hich this Court has treated judgments of
state couits. Where the statute as construed by the state,



court transgressed the First Amendment, we could not
but invalidate the judgments of conviction.

The very language of the Smith Act negates the inter—
pretation 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 col—
lege and university a course explaining the philosophical
theories set. forth in the books which have been placed in
evidence.” Such a charge is in strict accord with the
statutory language, and illustrates the meaning to be
placed on those words. Congress did not intend to eradi—
cate 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.


But although the statute is not directed at the hypo-
thetical cases which petitioners have conjured, its appli—
cation in this case has resulted in convictions for the.
teaching and advocacy of the overthrow of the Govern-
ment by force and violence, which, even though coupled
with the intent to accomplish that overthrow, contains an
element of speech. For this reason, we must pay special
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. A11 analysis of the lead—
ing cases in this Court which have involved direct limita-
tions 011 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, un—
qualified right but that the societal value of speech must
011 occasion be subordi1__1_ated to other values and
considerations. . C

No important case involving free speech was decided
by this Court prior to Schenek V. United States, 249 U. S.
47 (1919). Indeed, the summary treatment accorded
an argument based upon an individual’s claim that the
First Amendment protected certain utterances indicates
that the Court at earlier dates placed no unique emphasis
upon that right. 3 It was not until the classic dictum of
Justice Holmes in the Schenclc case that speech per se
rccciv ed that emphasis 111 a majority opinion. That case
involved a conviction under the Criminal Espionage Act
40 Stat. 217. The question the Court faced was whether
the evidence was sufficient to sustain the conviction.
Writing for a unanimous Court, Justice Holmes stated
that the “question in every case is whether the words used
are used in such circumstances and are of such a nature
as to create a clea1 and present danger that they will .
bring about the substantiv e evils that Congress has a right ,9
to prevent.” 249 U. S. at 52. But the force of even
this expression is considerably weakened by the reference
at the end of the opinion to Goldman v. United States,
245 U. S 474 (1918), a p10secution under the same stat-
ute. Said Justice Holmes “Indeed [Goldman] might be
said to dispose of the present contention if the precedent
covers all media concludendi but as the right to free

3 Toledo Mu 91101767 V. United States, 247 U. S. 402 (1918); F03: V.
Has/121101071236 U S 273 (1915); Daozsv Massachusetts 167 U. S.
43 (1897); see Gompcrs MBA/01178 Stove &' Range 00., 221 U. S 418,.
439 (1911); Robeztsonx. Baldwin 165U. S. 275 281 (1897).



speech was not referred to specially, we have thought fit

to add a few words.” 249 U. S. at 52. The fact- is in— .
escapable, too, that the phrase bore no connotation that T.
the danger was to be any threat to the safety of the
Republic. The charge was causing and attempting to ’

cause insubordination in the military forces and obstruct
recruiting. The objectionable document denounced con—
scription and its most inciting sentence was, “You must
do your share to maintain, support and uphold the rights
of the people of this country.” 249 U. S. at 51. Fifteen
thousand copies were printed and some circulated. This
insubstantial gesture toward insubordination in 1917 (131-—
ing warvwas held‘to be a clear and present danger of bring-
ing about the evil of military insubordination.

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: Fro/L-
werk v. United States, 249 U. S. 204 (1919)—public_ation
of twelve newspaper articles attacking the war; Uebs v.
United States, 249 U. S. 211 (1919)—0ne speech attack-
ing United States’ participation in the‘war; Abrams v.
United States, 250 U. S. 616 (1920)—circulation of copies
of two different socialist circulars attacking the war;
Schaefer v. United States, 251 U. S. 466 (1920)—publi-
cation 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, attack—
ing the purposes of the war and United States’ participa-
tion therein. Justice Holmes wrote the opinions for a
unanimous Court in Scheme/c, Fro/twerk and Debs. He
and Justice Brandeis dissented in Abrams, Scltaefer 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 un-
der Schenck. But these dissents did not mark a change
of principle. The dissenters doubted only the probable
effectiveness of the puny efforts toward subversion. I11
Abrams, they wrote “I do not doubt for a moment that
by the same 1easoning that would justify punishing pe1—
suasion to murder, the United States constitutionally may

punish speech that produces or is intended to produce a 1' . 3'

clear and imminent danger that it will bring about forth—

with certain substantive evils that the United States con— . :5

stit-utionally 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 283, although it does not make clear whether
“degree” refers to clear and present danger or evil. Per—
haps all were meant.

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 evi-
dence of violation may be sustained only when the speech a
or publication created a “clear and present danger” of :'
attempting or accomplishing the prohibited crime, 8. 9., I
interference withenlistment. 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‘ before the Couit in which
fiee speech was the crux of the conflict was Gitlow V.
New I 07/1, 268 U. S. 652 (1925). The1e New York had
made it a crime to “advocate . . . the necessity or pro—
priety of overthrowing the government by force. . . .”
The evidence of violation of the statute was that the
defendant had published a Manifesto attacking the Gov—
ermnent and capitalism. The convictions were sustained,
Justices Holmes and Brandeis dissenting. The majority
refused to apply the “clear and present danger” test to

4 Cf. Gilbert v. Minnesota, 254 U. S. 325 (1020).



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 dif—
ferent 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 con- i

“ - \h..-.....~_. ...-W....w. m»

stitutionality of any state statute, namely, whether the 3,
statute was “reasonable.” Since it was entirely reason— ‘:
able 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 E
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 wher-
ever 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 legis-
lature had the 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.

concurring in the result. In their concurrence they re-
peated 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.
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.5 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 1