| Dennis v. United States | |
|---|---|
 | |
| Argued December 4, 1950 Decided June 4, 1951 | |
| Full case name | Eugene Dennis, et al. v. United States |
| Citations | 341U.S.494 (more) 71 S. Ct. 857; 95L. Ed. 1137; 1951U.S. LEXIS 2407 |
| Case history | |
| Prior | Motion by co-defendant to dismiss attorney denied, 9 F.R.D. 367 (S.D.N.Y. 1949); defendants convicted, S.D.N.Y., October 29, 1949; affirmed, 183F.2d201 (2d Cir. 1950);cert. granted,340 U.S. 863 (1950). |
| Subsequent | Rehearing denied,342 U.S. 842 (1951); rehearing denied,355 U.S. 936 (1958). |
| Holding | |
| Defendants' convictions for conspiring to overthrow the U.S. government by force through their participation in the Communist Party were not in violation of the First Amendment. Second Circuit Court of Appeals affirmed. | |
| Court membership | |
| |
| Case opinions | |
| Plurality | Vinson, joined by Reed, Burton, Minton |
| Concurrence | Frankfurter |
| Concurrence | Jackson |
| Dissent | Black |
| Dissent | Douglas |
| Clark took no part in the consideration or decision of the case. | |
| Laws applied | |
| U.S. Const. amend. I; 18U.S.C. §§ 10, 11 (1946) | |
Overruled by | |
| |
Dennis v. United States, 341 U.S. 494 (1951), was aUnited States Supreme Court case relating toEugene Dennis,General Secretary of theCommunist Party USA. The Court ruled that Dennis did not have the right under theFirst Amendment to the United States Constitution to exercise free speech, publication and assembly, if the exercise involved the creation of a plot to overthrow the government.[1] In 1969,Dennis wasde facto overruled byBrandenburg v. Ohio.
In 1948, eleven Communist Party leaders were convicted of advocating the violent overthrow of the US government and for the violation of several points of theSmith Act. The party members who had been petitioning for socialist reforms claimed that the act violated their First Amendment rights to freedom of speech and that they served no clear and present danger to the nation. The eleven petitioners were:[2][3]
The 1949 trial was presided over byS.D.N.Y. JudgeHarold Medina, a formerColumbia University professor who had been a judge for only 18 months when the trial began.[4] The trial was held in theFoley Square federal courthouse in New York City, and opened on November 1, 1948; preliminary proceedings and jury selection lasted until January 17, 1949; the defendants first appeared in court on March 7; and the trial concluded on October 14, 1949.[5][6] Although later trials surpassed it, in 1949 it was the longest federal trial in US history.[5][7]
Prosecutor John McGohey did not assert that the defendants had a specific plan to violently overthrow the US government, but rather alleged that the CPUSA's philosophy generally advocated the violent overthrow of governments.[8] To prove this, the prosecution proffered articles, pamphlets and books (such asThe Communist Manifesto) written by authors such asKarl Marx.[9] The prosecution argued that the texts advocated violent revolution, and that by adopting the texts as their political foundation, the defendants were also personally guilty of advocating violent overthrow of the government.[10]
The five attorneys who volunteered to defend the communists were familiar with leftist causes and personally supported the defendants' rights to espouse communist views. They were Abraham Isserman,George W. Crockett, Jr., Richard Gladstein,Harry Sacher, and Louis F. McCabe.[11][5] Defendant Eugene Dennis represented himself. TheACLU was dominated byanti-communist leaders during the 1940s, and did not enthusiastically support persons indicted under the Smith Act. However, the ACLU did provide anamicus brief for the Foley Square defendants, endorsing a motion for dismissal.[12]
The defense employed a three-pronged strategy: First, portraying the CPUSA as a conventional political party, which promotedsocialism by peaceful means; second, employing the "labor defense" tactic to attack the trial as a capitalist venture which could never provide a fair outcome to proletarian defendants; and third, using the trial as an opportunity to publicize CPUSA policies.[13]
The defense deliberately antagonized the judge by making a large number of objections and motions,[4] which led to numerous bitter engagements between the attorneys and Judge Medina.[14] Out of the chaos, an atmosphere of "mutual hostility" arose between the judge and attorneys.[15] Medina came to believe that the defense attorneys were using the trial as an opportunity to publicize communist propaganda, and that they deliberately disrupted the trial using any means they could.[16] Judge Medina attempted to maintain order by removing defendants who were out of order. In the course of the trial, Medina sent five of the defendants to jail for outbursts. Several times in July and August, the judge held defense attorneys in contempt of court, and told them their punishment would be meted out upon conclusion of the trial.[17]
On October 14, 1949, after the defense rested their case, the judge gave the juryinstructions to guide them in reaching a verdict. After deliberating for seven and a half hours, the jury returned guilty verdicts against all eleven defendants.[18] The judge sentenced ten defendants to five years' imprisonment and a $10,000 fine each.
Petitioners were found guilty by the trial court and the decision was affirmed by theSecond Circuit Court of Appeals.[19] The Supreme Court grantedwrit of certiorari, but limited it to whether section two or three of the Smith Act violated the First Amendment and whether the same two sections violated the First and Fifth Amendments because of indefiniteness.
George W. Crockett, Jr., Abraham J. Isserman andHarry Sacher argued the cause forpetitioners. With them on the brief was Richard Gladstein.
Solicitor GeneralPhilip B. Perlman andIrving S. Shapiro argued the cause for the United States. With them on the brief wereU.S. Attorney GeneralJames Howard McGrath,U.S. Assistant Attorney General McInerney,Irving H. Saypol, Robert W. Ginnane, Frank H. Gordon, Edward C. Wallace, and Lawrence K. Bailey.
Handed down as a 6-2 decision by the Court on June 4, 1951, the judgment and a plurality opinion was delivered byChief Justice of the United StatesFred M. Vinson, who was joined by JusticesStanley Forman Reed,Sherman Minton, andHarold H. Burton. Separate concurring opinions were delivered by JusticesFelix Frankfurter andRobert H. Jackson. JusticesHugo Black andWilliam O. Douglas wrote separate dissenting opinions. JusticeTom C. Clark did not participate in this case.
The Court rule affirmed the conviction of the petitioner, a leader of theCommunist Party in the United States. Dennis had been convicted of conspiring and organizing for the overthrow and destruction of the United States government by force and violence under provisions of theSmith Act. In affirming the conviction, a plurality of the Court adopted JudgeLearned Hand's formulation of the clear and probable danger test, an adaptation of the clear and present danger test:
In each case [courts] must ask whether the gravity of the "evil", discounted by its improbability, justifies such invasion of free speech as necessary to avoid the danger.
In his dissent, Black wrote:
These petitioners were not charged with an attempt to overthrow the Government. They were not charged with overt acts of any kind designed to overthrow the Government. They were not even charged with saying anything or writing anything designed to overthrow the Government. The charge was that they agreed to assemble and to talk and publish certain ideas at a later date: The indictment is that they conspired to organize the Communist Party and to use speech or newspapers and other publications in the future to teach and advocate the forcible overthrow of the Government. No matter how it is worded, this is a virulent form of prior censorship of speech and press, which I believe the First Amendment forbids. I would hold 3 of the Smith Act authorizing this prior restraint unconstitutional on its face and as applied....
So long as this Court exercises the power of judicial review of legislation, I cannot agree that the First Amendment permits us to sustain laws suppressing freedom of speech and press on the basis of Congress' or our own notions of mere "reasonableness." Such a doctrine waters down the First Amendment so that it amounts to little more than an admonition to Congress. The Amendment as so construed is not likely to protect any but those "safe" or orthodox views which rarely need its protection....
There is hope, however, that in calmer times, when present pressures, passions and fears subside, this or some later Court will restore the First Amendment liberties to the high preferred place where they belong in a free society.
In 1957, the Court inYates v. United States restricted the holding in Dennis, ruling that the Smith Act did not prohibit advocacy of forcible overthrow of the government as an abstract doctrine. WhileYates did not overruleDennis, it rendered the broad conspiracy provisions of the Smith Act unenforceable.[citation needed] Finally, in 1969,Brandenburg v. Ohio held that "mere advocacy" of violence wasper se protected speech.Brandenburg was ade facto overruling ofDennis, defining the bar for constitutionally unprotected speech to be incitement to "imminent lawless action".[20]
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