Legal Analysis of Dennis v. United States & Free Speech Implications, Slides of Law

Download Legal Analysis of Dennis v. United States & Free Speech Implications and more Slides Law in PDF only on Docsity! California Law Review VoL. 39 DECEMBER, 1951 No.4 Dennis v. United States and the Clear and Present Danger Rule John A. Gorfinkel* and Julian W. Mack Ilt T H GREATEST single problem confronting the Supreme Court today is the task of reconciling our traditional concepts of individual liberty, particularly freedom of expression, with the demands of national security. During the past three terms, the Court has decided fifteen cases touching on various aspects of this problem.' All but onela were by divided courts. The most recent of these decisions, as well as the most far reaching in its implications, is Dennis v. United States' which sustained the conviction of eleven leaders of the Communist Party for conspiracy to violate section 2 of the Smith Act3 which makes it unlawful for any person: (1) to knowingly or wilfully advocate, abet, advise, or teach the duty, necessity, desirability, or propriety of overthrowing or destroying any gov- ernment in the United States by force or violence, or by the assassination of any officer of such government; * Member of the San Francisco Bar; Instructor in Constitutional Law, Golden Gate College of Law. t Member of the San Francisco Bar; Instructor, Golden Gate College of Law. I Only those cases which involved the federal loyalty and security programs, action under similar state laws, and state prosecutions for speech of a type that might be regarded as incite- ment to riot or attack on governmental institutions, have been listed. Cases involving labor disputes, religious liberty and contempts not involving investigations under loyalty and security programs are omitted. Decisions involving attacks on religious, racial or political groups: Feiner v. New York, 340 U.S. 315 (1951); Kunz v. New York, 340 U.S. 290 (1951); Terminiello v. Chicago, 337 U.S. 1 (1949). Federal employees loyalty programs: Bailey v. Richardson, 341 U.S. 918 (1951). Communist affidavit provisions of the Labor Management Relations Act: Osman v. Douds, 339 U.S. 846 (1950); American Communications Assn. v. Douds, 339 U.S. 382 (1950). Attorney General's list of subversive organizations: Anti-Fascist Committee v. McGrath, 341 U.S. 123 (1951). State employees loyalty programs: Garner v. Los Angeles Board, 341 U.S. 716 (1951). Contempts of court; refusal to answer questions re communist affiliation: Rogers v. United States, 340 U.S. 367 (1951) ; Blau v. United States, 340 U.S. 159 (1950). Jury trial in District of Columbia for contempt of Congress for refusal to answer ques- tions on communist affiliation; scope of inquiry into effect of loyalty program on federal em- ployees as prospective jurors: United States v. Fleischman, 339 U.S. 349 (1950) ; United States v. Bryan, 339 U.S. 323 (1950); Morford v. United States, 339 U.S. 258 (1950); Dennis v. United States, 339 U.S. 162 (1950) ; Christoffel v. United States, 338 U.S. 84 (1949). See also, Barsky v. United States, 167 F.2d 241 (D. C. Cir. 1948), cert. denied, 334 U.S. 843 (1948); Lawson v. United States, 176 F.2d 49 (D. C. Cir. 1949), cert. denied, 339 U.S. 934 (1950). la Blau v. United States, supra note 1. 2341 U.S. 494 (1951). &54 STAT. 670 (1940), 18 U.S.C. § 10 (1946). CALIFORNIA LAW REVIEW (2) with the intent to cause the overthrow or destruction of any gov- ernment 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 over- throwing 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 be- come a member of, or affiliated with, any such society, group, or assembly of persons, knowing the purposes thereof. The indictment charged the defendants had conspired (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 over- throw 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. 4 Although the statute is written in broad terms of advocate, advise and teach, section 2 was construed by the trial judge, in his charge to the jury, as requiring the intent that such teaching and advocacy be of a rule or principle of action and by language reasonably and ordinarily calculated to incite per- sons to such action, all with the intent to cause the overthrow or destruc- tion of the Government of the United States by force and violence as speed- ily as circumstances would permit.5 As so construed and applied, the Court of Appeals for the Second Cir- cuit affirmed the convictions.' The Supreme Court granted certiorari, lim- ited to two questions :7 1. Whether either section 2 or section 3 of the Smith Act, inherently or as construed and applied in the instant case, violates the First Amend- ment and other provisions of the Bill of Rights. 2. Whether either section 2 or section 3 of the Act, inherently or as construed and applied in the instant case, violates the First and Fifth Amendments because of indefiniteness. The Supreme Court accepted the construction placed upon the statute by the trial court and the court of appeals, and held the act, as so construed, constitutional on its face and as applied." Dennis was no exception to the fact that decisions in this area of con- stitutional law are marked by wide divergence of opinion among the jus- tices. Five separate opinions were filed by the eight justices who partici- 4 Supra note 2 at 497. 5 1d. at 512. 8 United States v. Dennis, 183 F.2d 201 (2d Cir. 1950). 7340 U.S. 863 (1950).8 Supra note 2 at 499 et seq. [Vol. 39 DENNIS V. UNITED STATES act.m Therefore, if any reasonable basis existed for the legislative determi- nation, there was no need to establish, in the particular case, that the words were used in such circumstances and were of such a nature as to create a clear and present danger. The Gitlow decision thereby divided freedom of speech cases into two classes. When the statute specified an offense in "non-speech" terms, speech was evidence of violation, or of a "verbal act" constituting such violation, only when it could be shown that such speech created a clear and present danger of accomplishing or attempting the substantive offense. However, if the legislature specified the offense in "speech" terms, then the courts accepted the legislative determination that such speech created a "clear and present danger." In effect, if not in words, the speech itself became the substantive evil. Justices Holmes and Brandeis dissented in Gitlow, urging that no such distinction should exist and that the question, in every case, under the Schenck type or the Gitlow type of statute, was whether the challenged speech created a clear and present danger under the circumstances2 5 The Gitlow distinction was followed in subsequent decisions involving state criminal syndicalism laws,26 with objection from Justices Holmes and Brandeis.' The case has been cited with approval on numerous occasions.2 s It has never been expressly overruled. 9 The clear and present danger rule as formulated in Schenck and applied in later cases admittedly is not a rule, but a statement of a broad principle.30 Its authors recognized this.3 It is not surprising, therefore, that people have 23 Id. at 668-670. 24 "[T]he general statement in the Schenck Case ... has no application to those like the present, where the legislative body itself has previously determined the danger of substantive evil arising from utterances of a specified character .... "It was sufficient if such acts were advocated in general terms; and it was not essential that their immediate execution should have been advocated. Nor was it necessary that the language should have been 'reasonably and ordinarily calculated to incite certain persons' to acts of force, violence, or unlawfulness." Id. at 671-672. See also note 22 supra. P5 Id. at 673 et seq. 2 6 Whitney v. California, 274 U.S. 357 (1927) ; Fiske v. Kansas, 274 U.S. 380 (1927). 27 See their concurring opinion in Whitney v. California, supra note 26 at 372. They con- curred in the result in Whitney on the grounds that the issue of "clear and present danger" had not been properly raised. 28The cases are collected in the concurring opinion of judge Chase in the court below. United States v. Dennis, supra note 6 at 237. See also American Communications Assn. v. Douds, supra note 1 at 400-401; Dunne v. United States, 138 F.2d 137, 145 (8th Cir. 1943). 29 "[N]o case subsequent to Whitney and Gitlow has expressly overruled the majority opinions in those cases." Vinson, C. J., in Dennis v. United States, supra note 2 at 507.3 0 "What we do say is that no longer can there be any doubt, if indeed there was before, that the phrase 'clear and present danger,' is not a slogan or shibboleth to be applied as though it carried its own meaning ..... L. Hand, 3., in United States v. Dennis, supra note 6 at 212. 3 -It is referred to by Holmes and Brandeis as "a question of proximity and degree," Schenck v. United States, supra note 14 at 52; and as a "rule of reason" to be applied "only by the exercise of good judgment," Schaefer v. United States, supra note 17 at 482-483. "This Court has not yet fixed the standard by which to determine when a danger shall be deemed clear; how remote the danger may be and yet be deemed present; and what degree of evil shall be deemed sufficiently substantial to justify resort to abridgment of free speech and assembly as the means of protection." Brandeis, J., in Whitney v. California, supra note 26 at 374. 19511 CALIFORNIA LAW REVIEW disagreed as to its meaning. "All agree that it means something very im- portant but no two seem to agree on what it is."32 It would appear that "clear" and "present" are not synonymous but have independent meanings. "Clear" implies the equivalent of a "proxi- mate cause" test; the danger must reasonably be anticipated as the result or effect of the speech.34 "Present" refers to the time when the evil may reasonably be expected, and there has been repeated insistence that "present" means "imminent" or "immediate."' 5 A substantive evil that the state has a right to prevent has been defined in terms of balancing interests, of weighing the importance of the interest to be protected against the degree of interference with the freedom."' Some interests which the state desires to protect may be so insignificant as not to warrant even the slightest interference with free speech. In this category courts have placed the interest of the state in keeping its streets clean," the protection of the householder from the annoyance of having his doorbell rung' and the right of one not to be subjected to verbal abuse." At the other extreme are certain narrowly drawn restrictions which are so insignificant in their impact that they do not interfere in any substantial degree with the right to speak, and do not condition that right on the ideas expressed."0 In this category are statutes which prevent speaking at certain 32 Jackson, J., in footnote 9 to his concurring opinion in Dennis v. United States, supra note 2 at 567. 33To warrant interference with speech "the public interest must be threatened not doubt- fully or remotely." Thomas v. Collins, 323 U.S. 516, 530 (1945). 34 Opinions speak in terms of "probable effect." See Debs v. United States, supra note 17 at 214-215. 3 5 Expressions such as these have appeared in opinions explaining or applying the rule: "The degree of imminence must be extremely high." Pennekamp v. Florida, 328 U.S. 331, 334 (1946), quoting Bridges v. California, 314 U.S. 252, 263 (1941). "There must be reasonable ground to believe that the danger apprehended is imminent." Brandeis, concurring in Whitney v. California, supra note 26 at 376. "[Speech] will bring about forthwith certain substantive evils," and there must be "present danger of immediate evil or an intent to bring it about .... " Holmes, dissenting in Abrams v. United States, supra note 17 at 627-628. "Grave and imme- diate danger." Board of Education v. Barnette, 319 U.S. 624, 639 (1943). 36See the discussion on this point in American Communications Assn. v. Douds, supra note 1 at 397-400. See also Justice Brandeis' opinion in Whitney v. California, supra note 26, quoted in part, infra note 60. VLovell v. Griffin, 303 U.S. 444 (1938); Schneider v. State, 308 U.S. 147 (1939); hold- ing invalid ordinances limiting or licensing distribution of handbills. Cf. Valentine v. Chresten- sen, 316 U.S. 52 (1942), where the handbills being distributed were primarily advertising, and their informational value was either a subterfuge or at best incidental. Accord: Marsh v. Ala- bama, 326 U.S. 501 (1946) ; Tucker v. Texas, 326 U.S. 517 (1946) ; involving distribution of religious literature in a company owned town and on property of the United States adminis- tered by the Public Housing Authority, respectively. 3sMartin v. Struthers, 319 U.S. 141 (1943), a 6-3 decision holding invalid a statute pro- hibiting doorbell ringing as applied to one distributing religious literature. Cf. Breard v. Alex- andria, 341 U.S. 622 (1951), decided the same day as Dennis and holding valid (Vinson, Black and Douglas dissenting) the application of a similar statute to one soliciting magazine sub- scriptions. 39 Cantwell v. Connecticut, 310 U.S. 296 (1940). See also note 42 infra. Cf. the views expressed by Jackson, J., dissenting, in Kunz v. New York, supra note 1.4 0 E.g., Prince v. Massachusetts, 321 U.S. 158 (1944), child labor law held applicable to minor selling religious literature. [Vol. 39 DENNIS V. UNITED STATES designated times or places,' or using offensive words' or an offensive volume of sound.' While the substantive evil must be serious and pose a substantial danger to society, it must not be supposed that the only evils the state has a right to prevent are those which threaten its existence, or the preservation of public peace and order.4 In Schenck the substantive evil was either an in- terference with recruitment or enlistment, or the attempt to cause such interference;4" it was not the effect of such interference or. attempt as a danger to the stability or safety of the government. The state's interest in protecting free opportunity for employment, unhindered by considerations of race or union membership," or in preventing combinations that would violate state anti-trust acts 7 or action interfering with the free flow of interstate commerce,;' will justify restraint that would otherwise violate freedom of speech. Can an "idea" or a belief be a substantive evil prior to the time that it becomes transmitted into words that pose a clear and present danger of ensuing activity?' Gitlow v. New York and the subsequent criminal syn- dicalism cases could be so interpreted."0 To the extent that Gitlow held the legislature could forbid certain types of utterances on the grounds that, in the judgment of the legislature, the words themselves were a clear and present danger, then the mere utterance was punishable regardless of the consequences or lack of consequences that flowed from it in the particular case. The result would be to make the statement of the idea, and not the effect of the statement, the offense. Gitlow has never been pushed to that extreme, and expressions to the contrary abound in the decisions even with 4 1 E.g., statutes restricting political campaigning within a designated distance of the polls on election days; statutes restricting noise or speaking in certain areas, such as near hospitals and the like, where quiet is essential. See Justice Jackson's reference in Kunz v. New York, supra note 1 at 309, to the act of Congress restricting demonstrations in the vicinity of the Supreme Court building. See also Cantwell v. Connecticut, supra note 39 at 304. 4 2 E.g., Hannegan v. Esquire, 327 U.S. 146 (1946); Justice Douglas' dissent in Dennis v. United States, supra note 2 at 581, and Chaplinsky v. New Hampshire, 315 U.S. 568 (1942). Limitations of space forbid a full exploration of the problem of words as an evil in themselves. 4 3 Kovacs v. Cooper, 336 U.S. 77 (1949). Cf. Saia v. New York, 334 U.S. 558 (1948). Justices Frankfurter, Black, Douglas and Rutledge regarded Kovacs as overruling Saia; the majority distinguished on the grounds that the ordinance considered in Kovacs prohibited only sound trucks emitting "loud and raucous" noises while Saia vested undue administrative discretion in a local official authorized to issue licenses for sound amplifying devices in public places. The terms 'qoud and raucous" were held not to be uncertain by the majority in Kovacs. 4 4 "[I]n suggesting that the substantive evil must be serious and substantial, it was never the intention of this Court to lay down an absolutist test measured in terms of danger to the Nation." American Communications Assn. v. Douds, supra note 1 at 397. 4 5 Supra note 14. See also Justice Brandeis' dissent in Schaefer v. United States, supra note 17 at 483. 4 0Building Service Union v. Gazzam, 339 U.S. 532 (1950); Hughes v. Superior Court, 339 U.S. 460 (1950) ; Teamsters Union v. Hanke, 339 U.S. 470 (1950). 17 Giboney v. Empire Storage Co., 336 U.S. 490 (1949). 4S American Communications Assn. v. Douds, supra note 1. 49 Perhaps the idea does not even have to be expressed in words. Morris L. Ernst in his book of reminiscenses, Tim BEsT Is YT..., 120-122 (1945), refers to two incidents where it was claimed that musical notes were obscene. And compare also the "Red Flag" statute con- sidered in Stromberg v. California, supra note 10. 5 0 Gitlow v. New York, supra note 13 at 668; see also Whitney v. California, supra note 26 at 371. 19$1] CALIFORNIA LAW REVIEW THE Dennis OPINIONS While recognizing the danger of attempting to compress into a page or a paragraph judicial opinions from twelve to twenty pages in length, it is believed that a summary of the several opinions in Dennis is essential to an understanding of what follows. Furthermore, in order to get the flavor of the opinions, the actual words of the justices have been used to the extent possible in this summary. The Vinson Opinion,6' Justices Reed, Burton and Minton Joining The defendants "intended to initiate a violent revolution whenever the propitious occasion appeared." There is no "right to rebellion ... where the existing structure of the government provides for peaceful and orderly change," and the overthrow of the government by force and violence is a substantive evil which the state has a right to prevent. The Smith Act, as construed and applied, does not prevent academic discussion; it does prohibit "advocacy." Freedom of speech is not unlimited or unqualified, but "the societal value of speech must, on occasion, be sub- ordinated to other values and considerations." The accepted test of whether speech can be prohibited is the classic "clear and present danger" rule, that is, clear and present danger of an act the state has a right to prohibit or prevent. If Gitlow v. New York indicated that "a certain kind of speech was itself harmful and unlawful... there is little doubt that subsequent opinions have inclined toward the Holmes-Brandeis" view that there can be no restriction unless such speech creates a clear and present danger of a substantive evil, other than the speech itself. The Holmes-Brandeis view is accepted and "we are squarely presented with the application of the 'clear and present danger' test." The meaning of "clear and present" is reexamined and redefined. The new definition is the statement of Chief Judge Learned Hand, author of the majority opinion in the court below: 6 In each case [courts] must ask whether the gravity of the "evil," dis- counted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger. The substantive evil here guarded against is not the overthrow of the government by force and violence, but the attempt at such overthrow.3 The existence of a group "ready to make the attempt.., when the leaders, these petitioners, felt that the time had come for action,"-"the existence of the conspiracy"-created the danger. This "conspiracy" is not a conspir- acy to plan and eventually attempt the overthrow of the government by force and violence, but a "conspiracy to advocate" with the intent of caus- or some members of it, had been fully conscious of the fact that there was a difference in its approach to questions of constitutionality between statutes in the economic area and statutes in the freedom of speech area. 1Dennis v. United States, supra note 2 at 499. 62 1d. at SO. 63Id. at 509-511, 517. [Vol. 39 DENNIS V. UNITED STATES ing such overthrow. The existence of such a conspiracy is a question of fact for the jury. The question of whether such conspiracy, if established as a fact, creates sufficient danger of a substantive evil to justify restraint, is a question of law for the court. The Frankfurter Opinione The application of the guaranty of freedom of speech to any given situ- ation requires a process of weighing relevant factors and making an adjust- ment between conflicting interests. "Not every type of speech occupies the same position on the scale of values." "Speech of this sort [i.e., advocating overthrow of the government by force and violence] ranks low" and "de- serves little protection." The primary responsibility for making such ad- justments and weighing the relevant factors is vested in the legislature and not the court. "To make validity of legislation depend on judicial reading of events still in the womb of time... is to charge the judiciary with duties beyond its equipment." The court should not set aside the judgment of the legislature unless "there is no reasonable basis for it." The "preferred position" of the First Amendment is questioned. How- ever, the decision in the Dennis case "does not mean that the Smith Act can constitutionally be applied to facts like those in Gitlow v. New York."6 5 The clear and present danger rule is accepted but that rule is "not a substitute for the weighing of values" and "there is ample justification for a legislative judgment that the conspiracy now before us [i.e., a conspiracy to advocate, in violation of section 2], is a substantial threat to national order and security" even though the conspiracy as charged "is not a con- spiracy to overthrow the government." There is a distinction between a "statement of an idea which may prompt its hearers to take unlawful action, and advocacy that such action be taken." The Jackson Opnion66 The clear and present danger rule is a rule of limited applicability. It cannot be applied, and should not be used, as a standard in cases of this character which require prophecy and prediction as to the effectiveness of communist propaganda, the degree of danger it poses, when a time Will come that will be ripe for an attempt at action, and the capacity of the gov- ernment to meet such an attempt. It is not forbidden to interfere with speech that counsels, incites or ad- 64 Id. at 517. 65 Id. at 542. He gives no clue to his reasons for this remark. Is it because he accepts jus- tice Holmes' view that Gitlow's remarks were "drool" in a "trivial case" (Justice Holmes' comment in letters to Sir Frederick Pollock, June 2, and 18, 1925, quoted in Justice Jackson's opinion, id. at 567, n. 10) like the "puny anonymities" in Abrams v. United States, supra note 17 at 629, or is it because Gitlow's intent or lack of intent to produce action was regarded as irrelevant by the majority in his case while in Dennis there is the finding of a specific intent? See Dennis v. United States, supra note 2 at 541. Compare the interpretation by the Court in the Gitlow case, that the New York statute required no intent to bring about the acts advocated, with the interpretation in Dennis, text at note 5 supra. 66 Dennis v. United States, supra note 2 at 561. 19511 CALIFORNIA LAW REVIEW vocates action that the state may make criminal. Since the government may forbid force or violence, since it may make criminal an attempt at over- throw of government by force and violence, it may prohibit its advocacy. "I think direct incitement by speech or writing can be made a crime." "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 entire emphasis of the opinion is on conspiracy. "What really is under review here is a conviction of conspiracy." "In conspiracy cases the Court not only has dispensed with proof of clear and present danger, but even of power to create a danger." "The basic rationale of the law of con- spiracy is that a conspiracy may be an evil in itself, independently of any other evil it seeks to accomplish." The Black Opinion6T The affirmance of these convictions repudiates the "clear and present danger" rule. It has not been established that there is a clear and present danger; there is merely teaching and advocacy. Laws interfering with the freedoms protected by the First Amendment cannot be sustained merely because the Court or legislature deems them reasonable under the circum- stances. The Douglas Opinion8 Admittedly certain types of speech are not protected. "If this were a case where [defendants] were teaching the techniques of sabotage, the as- sassination 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... [T]he teaching of methods of terror and other seditious con- duct should be beyond the pale along with obscenity and immorality.""0 The evidence here falls short of that proof and merely shows speech with- out seditious conduct or acts. Speech alone cannot be proscribed unless an immediate injury to society is likely if the speech is allowed; unless it ap- pears that "immediate serious violence was to be expected or was advo- cated, or that the past conduct furnished reason to believe that such advo- cacy was then contemplated. " 70 Advocacy alone is not enough; there must be incitement or indication "that the advocacy would be immediately acted on."7 "How it can be said that there is a clear and present danger that this advocacy will succeed is ... a mystery." "Unless and until extreme and 6 Dennis v. United States, supra note 2 at 579. 8Id. at 581. 69Id. at 581. Is the basis for this distinction between teaching the techniques of terror and teaching the need for or desirability of terror one of kind, or of degree? Is it anything nore than, in the first situation, that there is a clearer and more imminent danger that the pupils will put their lessons into practice? Is Douglas inferring this or is he implying some distinction in kind? And if so, how would he express it other than certain kinds of ideas cannot be taught or advocated, in short, cannot legally be expressed? TOId. at 586, quoting from Justice Brandeis' concurring opinion in Whitney v. California, supra note 26 at 376-377. 7"-Dennis v. United States, supra note 2 at 586, again quoting from Whitney. [Vol. 39 DENNIS V. UNITED STATES indicate that while the words remain the same, their meaning has been altered. The Vinson opinion accepts the rule as redefined by Judge Hand.s Only Justice Jackson expressly repudiates it as a basis for decision in this case. He would regard advocacy of overthrow of the government by force and violence (at least when accompanied by a conspiracy so to advo- cate) as outside the protection of free speech." At times, Justice Frank- furter approaches, but does not quite reach, the same conclusion.s5 He adheres to the view that clear and present danger must exist, but offers the suggestion that there are varying degrees of protection, depending on the nature of the speech, and that "on any scale of values which we have hitherto recognized, speech of this sort ranks low" and "deserves little protection." 86 Although there is one statement in the Vinson opinion---"Speech is not an absolute, above and beyond control by the legislature when its judg- ment, subject to review here, is that certain kinds of speech are so undesir- able as to warrant criminal sanction" s--which seems akin to the Jackson thesis, 8 the entire tenor of the Vinson opinion, is an approval of the clear and present danger rule as restated. The real point of departure, in the Vinson opinion, is in the meaning of "present"; 8" therein it differs basically from the views of Jackson and the quoted expressions of Frankfurter which place greater emphasis upon the nature of the idea expressedf 0 Is there any justification for assigning different "values" to different types of speech; for regarding certain speech as beyond protection or as deserving "little protection"? Previous reference was made to cases considering freedom of speech in the light of the words used;91 vituperative and abusive language, name call- ing, "fighting words" and the like may rank low on the scale of free speech because they are not necessary to discourse or conducive to the expression Dennis v. United States, supra note 2 at 508. See also, for analysis of the other opinions, text at note 64 et seq. supra.83 Text at note 62 supra. s4 "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." Dennis v. United States, supra note 2 at 574. Note that Justice Jackson's opinion implies that if the end be punishable, teaching or advocacy of that end is also punishable; in short, any teaching or advocacy of force or violence is punishable. Does this mean any teaching or advocacy, either in the sense of incitement or in the sense of exposition or explanation? Id. at 572. See text at note 121 infra; note 128 infra. Does he mean, for example, that since polygamy may be punished, the state may prohibit teaching or advocating the desirability of polygamy? Compare Musser v. Utah, 333 U.S. 95 (1948). 85 "Even though advocacy of overthrow deserves little protection, we should hesitate to prohibit it if we thereby inhibit the interchange of rational ideas so essential to representative government and free society." Dennis v. United States, supra note 2 at 545-546. And see also his emphasis on the need for free criticism and interchange of ideas. Id. at 548-550. 86 Id. at 542-545. 8 "'Id. at 508.8 8 Supra note 84. 89 Dennis v. United States, supra note 2 at 509-511. 90 See text at note 86 supra. 91 See note 42 supra. 19511 CALIFORNIA LAW REVIEW of ideas, 2 but there is nothing in the Frankfurter and Jackson opinions to indicate that their views are based on the language used, that speech of the sort involved in the Dennis case deserved little or no protection because of the words used or the manner in which the idea was being advocated. Rather, it appears that the speech is regarded as outside the pale, or as de- serving "little protection" because of the idea that is being advocated.' There is some basis for arguing that speech which seeks or advocates force and violence, unlike speech which seeks to convince, may stand on a different footing. Mr. Justice Jackson is probably correct in his statement that the rule, as originally stated in Schenck, did not contemplate speech of this character,94 and there is the statement of Mr. Justice Holmes in his dissenting opinion in Abrams v. United States explaining the basis of our insistence on freedom of speech as:95 ... the ultimate good desired is better reached by free trade in ideas-that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground on which their wishes safely can be carried out. That at any rate is the theory of our Con- stitution ... I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is re- quired to save the country... Of course I am speaking only of expressions of opinion and exhortations .... If we emphasize the view that the purpose of freedom of speech is to permit full interchange of ideas, with victory to go to that which "get[s] itself accepted in the competition of the market" then Mr. Justice Jackson has support for the view that speech of the character involved in Dennis, which seeks to prevail in spite of non-acceptance in the competition of the market, has no standing." The objections to such an approach are many. The line between one who speaks with intent to convince and one who speaks with intent to override those who are not convinced is, at best, un- clear. Freedom of speech is too precious and too fundamental to our lib- 92 Chaplinsky v. New Hampshire, supra note 42, and*Cantwell v. Connecticut, supra note 39. 93 Although justice Frankfurter cites Chaplinsky in support of his "scale of values" state- ment, he indicates that it is the nature of the idea that ranks low. Dennis v. United States, supra note 2 at 544-545. For justice Jackson's views, see note 84 supra. OlDennis v. United States, supra note 2 at 567-568. VsSupra note 17 at 630. 96See a similar approach, also citing Abrams, in the Vinson opinion in American Com- munications Assn. v. Douds, supra note 1 at 396, where, referring to section 9 (h) of the Labor Management Relations Act of 1947, the Court states: "On the contrary, it [the Board] points out that such strikes are called by persons who, so Congress has found, have the will and power to do so without advocacy or persuasion that seeks acceptance in the competition of the market.' judge Hand made a similar observation in the court below: "The violent capture of all existing governments is one article of the Creed of that [the Communist] faith, which abjures the possibility of success by lawful means." United States v. Dennis, supra note 6 at 212. See also Judge Hand's discussion of the First Amendment, id. at 207. Cf. Thornhill v. Alabama, supra note 78 at 104-105. [Vol. 39 DENNIS V. UNITED STATES erties to permit a court or jury to speculate on the subtle differences in motivation that such a test would require. There seems to be no instance in recent years which would justify a scale of values for speech based on ideas expressed, which would give some ideas a zero rating and other various percentages. On the contrary, a con- cept of evaluating ideas for constitutional preference, based on either legis- lative or judicial determination, is inconsistent with the one fundamental orthodoxy of our governmental system that in the realm of idea and belief there are no orthodoxies. 7 Our tradition has clearly been opposed to censor- ship of ideas and we repent the departures from that tradition. We have acknowledged the error, and are ashamed when reminded, of the Alien and Sedition laws; 98 we still blush over the "witch hunts" that followed the first World War. And we have accepted the Holmes-Brandeis view that "if there is any principle of the Constitution that more imperatively calls for attach- ment than any other it is the principle of free thought-not free thought for those who agree with us but freedom for the thought we hate."" It would be idle to contend that "free thought" did not include the right to express that thought.' With such a background there seems no basis for proscribing speech because the idea is hateful, unpopular or potentially dangerous unless and until there is some likelihood that a real danger or evil will ensue, and that of course, brings us to the meaning of "clear and present." The Meaning of "Clear" and "Present" If, as it seems, "clear" and "present" have separate meanings, 101 and "dear" indicates the need for a causal connection,'0I then that part of the standard remains unaltered in the Vinson opinion. 3 The construction placed upon the Smith Act by all three courts required that the speech, in order to be punishable, be with the intent and purpose of effecting a course of action. 0 1 To that extent, the opinion is consistent with the views ex- pressed in prior opinions.' 05 97 See notes 51 and 52 supra. 98 Act of July 14, 1798, c. 73, 1 STAT. 596. See Justice Holmes, dissenting, in Abrams v. U.S., supra note 17 at 630. 99United States v. Schwimmer, 279 U.S. 644, 654 (1929) (dissenting opinion). 10D See Thornhill v. Alabama, supra note 78 at 101-104. 101 See text at notes 33-35 supra. 102 See text at note 33 supra. 10 3 The decision emphasizes that petitioners intended to initiate a violent revolution, Den- nis v. United States, supra note 1 at 499; that "It)he general goal of the Party was, during the period in question, to achieve a successful overthrow of the existing order by force and vio- lence," id. at 498; and that the Party had "an apparatus designed and dedicated to the over- throw of the Government," id. at 510. 104 See the instructions of the trial court, text at note 5 supra; the court of appeals decision, United States v. Dennis, supra note 6 at 214, 215;.the Vinson opinion, Dennis v. United States, supra note 2 at 499. 10 5 See justice Murphy's opinion in Hartzel v. United States, supra note 17, and the dis- senting opinions in Abrams v. United States, and Schaefer v. United States, supra note 17. In Hartzel the conviction was reversed on the grounds that the publication was not proved to have been made with the intent to cause or attempt a violation of the Espionage Act. The dissents in Abrains and Schaefer were on the same issue, lack of intent or purpose to cause the substantive evil. 19511 CALIFORNIA LAW REVIEW ally urge, teach, counsel or advocate an idea or a doctrine, why should it be prohibited to a group? And calling that group a "conspiracy" begs the question. If three persons possess the constitutional right to say something individually, the fact that they agree to say it together, or as part of a pro- gram, should not make them conspirators. It would seem that calling it a conspiracy to advocate is no help and that we are back at the basic question of whether the advocacy prohibited by the Smith Act can constitutionally be restrained, with or without conspiracy to advocate. 7 As to the element of danger, of course, we may concede that the greater the number of advo- cates, the more likely the danger, but in that case the danger exists whether the advocates "conspire to advocate" or work independently and without agreement or conspiracy. As an exercise in semantics it might be interesting to pursue the subtle differences among those words. As a guide to the application of the clear and present danger rule, they do no more than characterize a reaction to a given situation; they decide the issue by begging the question, rather than by analyzing the situation.'m Every discussion, unless it be so sterile as to be meaningless, is to some degree advocacy, be it advocacy for or advocacy against the idea discussed. Certainly, no subject as controversial as communism can be discussed among intelligent people without some note of advocacy creeping into that discussion. And "every idea is an incitement."'12 The extent to which speech may be a philosophical statement of a proposition, rather than a spur to action, can be determined only by careful appraisal of such matters as time and place, tone 'of voice or manner of speech, temper and mood of audience. One need but re-read Marc Antony's oration' to realize that words may be expressions of opinion, statements of fact, or incitements to violent ac- 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." See also judge Hand's opinion in the court of appeals: "The suf- ficiency of the evidence therefore comes down to whether it is a crime to form a conspiracy to advocate or teach the duty and necessity of overthrowing the government by violence, and to organize the Communist Party as a group so to teach and to advocate." United States v. Dennis, supra note 6 at 206. Uri Compare Jackson: "I do not suggest that Congress could punish conspiracy to advo- cate something, the doing of which it may not punish." Dennis v. United States, supra note 2 at 575. Note also that Jackson, with his emphasis on conspiracy, assumes that the advocacy or teaching here was punishable. See text at note 66 supra; note 84 supra, 128The clearest proof of the danger in using these words as if they possessed legal sig- nificance is the extent to which they are defined in terms of each other. See text at notes 118-122 supra. See Jackson's concurring opinion: "[It is not always easy to distinguish teaching or advocacy in the sense of incitement from teaching or advocacy in the sense of exposition and explanation. It is a question of fact in each case." Dennis v. United States, supra note 2 at 572. In order to avoid the unconstitutionality that would result if "advise" and "teach" were given their normal meanings, these words in the Smith Act were defined in the charge to the jury as "teaching and advocacy . . . by language reasonably and ordinarily calculated to incite . . . ." Id. at 512. Compare also the distinction as to the meaning of "advocacy" between Vinson's opinion in Dennis, id. at 502, and Rutledge's opinion in Musser v. Utah, supra note 84 at 100-103. '20 Holmes, J., dissenting, Gitlow v. New York, supra note 13 at 673. 130Julius Caesar, Act. III, Scene I. [Vol. 39 DENNIS V. UNITED STATES tion, depending upon where one pauses, where one accents, and how one pitches his voice. For Brutus is an honorable man; So are they all, all honorable men; becomes not a statement of fact, not words of praise, but incitement to banishment and death. This fact has not escaped the attention of the Court in recent freedom of speech cases. 3 ' It is doubtful whether anything constructive can come of repeating these intangible distinctions between expressions of ideas, and advocacy and incitement; between counseling and expressing an opinion. Every so often, there is discussion of the idea of euthanasia. At what.point does a medical or philosophical discussion of the idea cease to be protected and become advocacy or counselling of murder? Does it help to say that it is permissible when the discussion merely advocates that the law be changed but it becomes punishable when it is suggested that it be practiced even though the law not be changed?' 32 Advocacy that a law be changed can be couched in such language and the existing law be characterized as so im- moral or unfaii, that some people may be led to violate it without waiting for the legislative process to function.'33 Are not all these expressions mere- ly another way of saying that one who speaks of violation of the law with the intent3' and in such a manner and under such circumstances as to create a danger that violation of the law will presently follow, has over- stepped the bounds; that such speech can then be restrained because of the consequences that are about to flow from it? What then becomes of "present" as applied to the Smith Act in the Dennis case? Nothing in any opinion indicates that overthrow, or attempt at overthrow, was "present" in any previously accepted sense of that term, that is, imminent, immediate, or probably threatened in the foreseeable future. We can concede there was advocacy, but we must recognize that that word of many meanings and subtle shadings is more descriptive of a result than analytical. There are, it would appear, two alternatives. We can accept Dennis as meaning, in the Vinson-Hand formulation, that "present" does not mean "present" when the substantive evil is suf- ficiently great; that where we are dealing with the basic problem of the 13 1 An effective and safer way is to incite mob action while pretending to deplore it, after the classic example of Antony, . ." Jackson, J., dissenting, Terminiello v. Chicago, supra note 1 at 35. 132See the discussion of this point in Justice Rutledge's dissenting opinion in Musser v. Utah, supra note 84 at 101-103, which he concludes with: "... [the] position, that the state may prevent any conduct which induces people to violate the law, or any advocacy of unlaw- ful activity, cannot be squared with the First Amendment." See also Justice Brandeis' concur- ring opinion in Whitney v. California, supra note 26 at 376. =See Rutledge, J., dissenting, Musser v. Utah, supra note 84 at 101-102. 1 The following discussion assumes that intent (as expressed in the Vinson opinion, text at note 61 supra; Hartzel v. United States, supra note 17; Justice Holmes' dissents in Abrams v. United States, supra note 17; Schaefer v. United States, supra note 17) must be established. See also note 105 supra. 1951] CALIFORNIA LAW, REVIEW safety of a society, "present" means "possible," or "potential." Factually that is as close as the danger of overthrow or attempt at overthrow ever approaches in the Dennis case. If that be the teaching of Dennis, then that decision, by redefining "present," or by establishing a sliding scale of speech values in which the need for "present" varies directly with the value as- signed to the subject of the speech, has so modified the original "clear and present danger rule" as to require a complete reorientation to the guaranty of the First Amendment. The other alternative is to reexamine the matter of "substantive evil" and ascertain whether there is or may be a substantive evil, other than overthrow or attempt at overthrow, the danger of which was sufficiently "present" to justify application of the Smith Act consistently with prior doctrine. The Substantive Evil The text of the Smith Act and its application in Dennis offer four pos- sibilities as to the nature of the substantive evil: 135 (1) Advocacy of, or a conspiracy to advocate, overthrow of the gov- ernment by force and violence. (2) An attempt to overthrow the government by force and violence. (3) The successful overthrow of the government by force and violence. (4) The existence of a conspiracy to plan the overthrow of the gov- ernment by fohce and violence. Which, if any, of these was (a) "present" and (b) accepted as the "sub- stantive evil"? And which, if any, should be accepted as a "substantive evil," the danger of which was sufficiently "clear and present," to justify the application of the rule in its original form? There is no doubt that advocacy and conspiracy to advocate were "present" in every accepted sense of that term. 36 But can such advocacy, or conspiracy to advocate, be itself a substantive evil? We have already MThe quoted instructions of the trial judge merely referred to "a substantive evil." Dennis v. United States, supra note 2 at 512. The Vinson opinion accepts "an attempt to over- throw ... even though doomed from the outset ... ," id. at 509, as a sufficient substantive evil for Congress to prevent. The Douglas opinion can be interpreted as regarding the evil either as attempt or overthrow. He quotes from Whitney v. California about advocacy that "would be immediately acted on," id. at 586, and he speaks of advocacy that "will succeed." Id. at 588. He would apparently agree that violence or the attempt at violence is a sufficient substantive evil and require only such advocacy as would indicate that violence was imminent, again quot- ing from Whitney, id. at 588. Elsewhere in his opinion, justice Douglas gives some indication that he would accept a conspiracy to overthrow the government as a substantive evil. He states: "This case was argued as if those [the teaching of methods of terror and other seditious conduct] were the facts. The argument imported much seditious conduct into the record. That is easy and it has popular appeal ... But the fact is that no such evidence was introduced at the trial. There is a statute which makes a seditious conspiracy unlawful. Petitioners, however, were not charged with a 'conspiracy to overthrow' the government ... It may well be that indoctrination in the techniques of terror to destroy the Government would be indictable under either statute." Id. at 581-582. Jackson seems to accept a conspiracy to advocate or teach as the substantive evil. Id. at 574. 136.Id. at 497-499. [Vol. 39 DENNIS V. UNITED STATES Thus the Vinson opinion, at one point states: "They [Justices Holmes and Brandeis] 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, 'M and it accepts the court of appeals conclusion that petitioners "intended to initiate a violent revolution whenever the propitious occasion appeared."'' I The idea of an "apparatus" plus the intent to initiate (not merely talk about, advocate or discuss) violent revolution carries the con- notation of a conspiracy to revolt. The opinion of the court of appeals accepts the premise that the Ameri- can Communist Party is a conspiracy15' and the jury's implied finding "that the conspirators will strike as soon as success seems possible.' Is this any different from a conspiracy to burglarize a home as soon as the inhab- itants leave on their vacation? The fact that the occupants of the home have no present vacation plans, or may not ever take that vacation, does not make the conspiracy innocuous. It admittedly is punishable. If this analy- sis be correct, then a conspiracy existed to strike to overthrow the govern- ment by force and violence and was an existing substantive evil which the government had a right to prevent at the time the acts laid in the indictment took place. The speech, or advocacy, or teaching charged as violation of the Smith Act could have been found to be an aid to, a furtherance and aug- mentation of, the conspiracy. If this be true then the relation between teaching and evil was clear and present under the strictest construction of the Holmes-Brandeis test. CONCLUSION There is a saying about the need for keeping one's feet on the ground while walking about with one's head in the clouds. And there have been frequent admonitions concerning the danger of losing our liberties by sup- pression of thought and belief while engaged in a struggle to preserve those liberties." 9 The need to strike a proper balance between freedom and se- curity is our main concern today. It is our opinion that such a balance is not reached in any of the Dennis opinions. It clearly asks too much of organized government that it be pre- vented from interfering with speech that advocates or teaches or advises its overthrow by force and violence until it is faced with an imminent at- is of course no answer to the fact that there was a group that was ready to make the attempt." Dennis v. United States, supra at 510. See also the Jackson opinion, id. at 564-567. 155Id. at 510. 3'50Id. at 497. 157 Of course, this may be only the "conspiracy to advocate" but note such an expression, in the Hand opinion as "so thoroughly planned and so extensive a confederation." (Emphasis added.) United States v. Dennis, supra note 6 at 213, and the implications of the opinion are that the conspiracy was one to plan and act, not merely talk about, although it is clear that the conspiracy charged in the indictment and for which defendants were convicted, was a con- spiracy to talk and not to act. See note 126 supra. 15s United States v. Dennis, supra note 6 at 213. 159 See for examples Justice Frankfurter's opinion, Dennis v. United States, supra note 2 at 553-557; Justice Jackson's opinion, id. at 577-579; Justice Douglas' opinion, id. at 591; Justice Jackson's opinion in Terminiello v. Chicago, supra note 1 at 32-37. 1951] CALIFORNIA LAW REVIEW tempt at action. To this extent the views of the Vinson, Frankfurter and Jackson opinions and their objections to the Black-Douglas approach seem sound. But it equally asks too great a surrender of individual rights to sub- ject to punishment or suppression the expression of one's views whenever the objective of those views is proscribed by the legislature as a substantive evil and the Court finds that there is any likelihood that the expression of such views may lead to action some time in the future. To this extent the objections of Justices Black and Douglas to the result in Dennis likewise seem sound. We believe that a balance between security and freedom-between the extreme of the Vinson, Frankfurter and Jackson opinions on the one hand, and the Black and Douglas views on the other-can be attained in the application of the Smith Act and others of like character by treating the conspiracy to plan the overthrow of the government, rather than the at- tempt at such overthrow, as the substantive evil to be guarded against. As applied to the communist problem in the United States, it would permit the application of the Smith Act, if or when the proof exists that the Communist Party is in fact a conspiracy which plans the overthrow of the government by force and violence. In other situations we would avoid'the danger that similar legislation might be used to strike down advocacy of a program or policy merely because some people might regard that program or policy as an evil and there was some possibility that the program might be carried out, unless action was imminent or there was a conspiracy, with an existing or impending plan for action, to carry out that program by illegal means. While the suggested approach might not affect the eventual result in Dennis, it seems to provide safeguards to both individual liberties and gov- ernment security that are not present in the Dennis opinions. It accepts without modification the clear and present danger rule as originally developed and applied in Schenck. With few exceptions, that rule, as historically applied, has been a safeguard to individual liberty, and has imposed little, if any, burden on the maintenance of public order and security. The Vinson-Hand test comes perilously close to inflicting on American thought a new sword of Damocles, with an elastic band substi- tuted for a single hair, and with the tensile strength of the elastic and the weight of the sword adjusted to whatever ideas may be advocated by the immediate occupant of Damocles' chair. The Frankfurter and Jackson opinions give even less security to individual expression and leave it open to Court or legislature to proscribe certain types of speech if there is some basis for legislative judgment that it will produce an evil, or if the idea advocated ranks low on the scale of speech values, or is sufficiently obnox- ious to be completely beyond the pale. The approach here suggested would require that before there could be a conviction under the Smith Act (or any similar act charging violation in speech terms) for advocating, advising or teaching a doctrine, the objective of which is a substantive evil that the state has a right to prevent, there exist a clear and present danger that the speech will presently result in (1) accomplishing the evil, or (2) aiding or abetting an organized group [Vol. 34) DENNIS V. UNITED STATES or conspiracy dedicated to that objective and having a plan of action, by illegal means (other than speech) or for illegal purposes, to be placed in operation at a propitious moment, or (3) aiding or abetting the formation of such an organized group or conspiracy. An organization to spread a doc- trine, even with the intent it be a rule of action, would be protected unless the organization to act and the plan for action were either in existence or impending. Philosophical discussion, advocacy and the opportunity to test doctrine and secure its acceptance as "truth in the market place" would be protected. As applied to the Dennis case, this approach would conform to the Holmes-Brandeis dissents in Abrams and Gitlow and their concurrence in Whitney. From the government's point of view, its protection and security are not measureably weakened. The extreme position of Justices Black and Douglas is avoided. No forecast or prophecy of the eventual outcome of the conspiracy, or when, if at all, it will make the attempt at violent action, or the likelihood of its success, is required. No one need wait until the evil of violent action is upon us and the "verbal trap" is eliminated. It may be argued that as thus analyzed, the Smith Act adds little to the existing offense of seditious conspiracy; 160 that since a conspiracy to over- throw, put down, or destroy, by force, the government of the United States is already punishable, why prove that crime in order to convict of another? There are two answers. One is that to the extent the Smith Act is applicable to prevent or punish speech, with the intent to aid or abet the formation of a seditious conspiracy, which speech creates a clear and present danger that such a conspiracy is imminent, it moves the line of defense one step for- ward. The other is that if, in fact, it adds nothing substantial to the existing crime of seditious conspiracy, then the Smith Act and others like it are unnecessary. The machinery already exists, in legislation specifying viola- tion in non-speech terms, adequately to deal with any situation that the Smith Act covers, or should constitutionally cover, and we can then return to the basic principles of Schenck v. United States. 160 18 U.S.C. § 2384 (Supp. 1951). 19511