1

United States Supreme Court

DENNIS v. UNITED STATES, (1951)
No. 336
Argued: December 4, 1950 Decided: June
4, 1951

1. As construed and applied in this case, 2 (a)

(1), 2 (a) (3) and 3 of the Smith Act, 54 Stat. 671,
making it a crime for any person knowingly or
willfully to advocate the overthrow or destruction
of the Government of the United States by force or
violence, to organize or help to organize any group
which does so, or to conspire to do so, do not
violate the First Amendment or other provisions of
the Bill of Rights and do not violate the First or
Fifth Amendments because of indefiniteness. Pp.
495-499, 517.
2. Petitioners, leaders of the Communist Party
in this country, were indicted in a federal district
court under 3 of the Smith Act for willfully and
knowingly conspiring (1) to organize as the
Communist Party a group of persons to teach and
advocate the overthrow and destruction of the
Government of the United States by force and
violence, and (2) knowingly and willfully to
advocate and teach the duty and necessity of
overthrowing and destroying the Government of
the United States by force and violence. The trial
judge instructed the jury that they could not
convict unless they found that petitioners intended
to overthrow the Government "as speedily as
circumstances would permit" but that, if they so
found, then, as a matter of law, there was sufficient
danger of a substantive evil that Congress has a
right to prevent to justify application of the statute
under the First Amendment. Petitioners were
convicted and the convictions were sustained by
the Court of Appeals. This Court granted
certiorari, limited to the questions: (1) Whether
either 2 or 3 of the Smith Act, inherently or as
 2

construed and applied in the instant case, violates

the First Amendment and other provisions of the
Bill of Rights; and (2) whether either 2 or 3,
inherently or as construed and applied in the
instant case, violates the First and Fifth
Amendments because of indefiniteness. Held: The
convictions are affirmed. Pp. 495-499, 511-512,
517.
183 F.2d 201, affirmed. [341 U.S. 494, 495]
For the opinions of the Justices constituting the
majority of the Court, see:
Opinion of THE CHIEF JUSTICE, joined by MR.
JUSTICE REED,
MR. JUSTICE BURTON and MR. JUSTICE
MINTON, p. 495.
Opinion of MR. JUSTICE FRANKFURTER, p.
517.
Opinion of MR. JUSTICE JACKSON, p. 561.
For the dissenting opinion of MR. JUSTICE
BLACK, see p. 579.
For the dissenting opinion of MR. JUSTICE
DOUGLAS, see p. 581.
The case is stated in the opinion of THE CHIEF
JUSTICE, pp. 495-499. Affirmed, p. 517.
George W. Crockett, Jr., Abraham J. Isserman
and Harry Sacher argued the cause for petitioners.
With them on the brief was Richard Gladstein.
Solicitor General Perlman and Irving S. Shapiro
argued the cause for the United States. With them
on the brief were Attorney General McGrath,
Assistant Attorney General McInerney, Irving H.
Saypol, Robert W. Ginnane, Frank H. Gordon,
Edward C. Wallace and Lawrence K. Bailey.
 3

MR. CHIEF JUSTICE VINSON announced the

judgment of the Court and an opinion in
which MR. JUSTICE REED, MR. JUSTICE
BURTON and MR. JUSTICE MINTON join.
Petitioners were indicted in July, 1948, for
violation of the conspiracy provisions of the Smith
Act, 54 Stat. 671, 18 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 alia, that the statute was unconstitutional
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 questions: (1) Whether either
2 or 3 of the Smith[341 U.S. 494, 496] 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 or 3 of the Act, inherently or as construed
and applied in the instant case, violates the First
and Fifth Amendments because of indefiniteness.
Sections 2 and 3 of the Smith Act, 54 Stat. 671,
18 U.S.C. (1946 ed.) 10, 11 (see present 18 U.S.C.
2385), provide as follows:
"SEC. 2. (a) It shall be unlawful for any person -
"(1) to knowingly or willfully advocate, abet,
advise, or teach the duty, necessity, desirability, or
propriety of overthrowing or destroying any
government in the United States by force or
violence, or by the assassination of any officer of
any such government;
"(2) with intent to cause the overthrow or
destruction of any government in the United States,
to print, publish, edit, issue, circulate, sell,
distribute, or publicly display any written or printed
matter advocating, advising, or teaching the duty,
necessity, desirability, or propriety of overthrowing
 4

or destroying any government in the United States

by force or violence;
"(3) to organize or help to organize any society,
group, or assembly of persons who teach, advocate,
or encourage the overthrow or destruction of any
government in the United States by force or
violence; or to be or become a member of, or
affiliate with, any such society, group, or assembly
of persons, knowing the purposes thereof.
"(b) For the purposes of this section, the term
`government in the United States' means the
Government of the United States, the government
of any State, Territory, or possession of the United
States, the government of the District of Columbia,
or the [341 U.S. 494, 497] government of any
political subdivision of any of them.
"SEC. 3. It shall be unlawful for any person to
attempt to commit, or to conspire to commit, any of
the acts prohibited by the provisions of this title."

The indictment charged the petitioners with

wilfully and knowingly conspiring (1) to organize
as the Communist Party of the United States of
America a society, group and assembly of persons
who teach and advocate the overthrow and
destruction of the Government of the United States
by force and violence, and (2) knowingly and
wilfully to advocate and teach the duty and
necessity of overthrowing and destroying the
Government of the United States by force and
violence. The indictment further alleged that 2 of
the Smith Act proscribes these acts and that any
conspiracy to take such action is a violation of 3 of
the Act.
The trial of the case extended over nine
months, six of which were devoted to the taking of
evidence, resulting in a record of 16,000 pages.
Our limited grant of the writ of certiorari has
removed from our consideration any question as to
the sufficiency of the evidence to support the jury's
determination that petitioners are guilty of the
 5

offense charged. Whether on this record

petitioners did in fact advocate the overthrow of
the Government by force and violence is not before
us, and we must base any discussion of this point
upon the conclusions stated in the opinion of the
Court of Appeals, which treated the issue in great
detail. That court held that the record in this case
amply supports the necessary finding of the jury
that petitioners, the leaders of the Communist
Party in this country, were unwilling to work within
our framework of democracy, but intended to
initiate a violent revolution whenever the
propitious occasion appeared. Petitioners dispute
the meaning to be drawn from the evidence,
contending that the Marxist-Leninist [341 U.S.
494, 498] doctrine they advocated taught that
force and violence to achieve a Communist form of
government in an existing democratic state would
be necessary only because the ruling classes of
that state would never permit the transformation
to be accomplished peacefully, but would use force
and violence to defeat any peaceful political and
economic gain the Communists could achieve. But
the Court of Appeals held that the record supports
the following broad conclusions: By virtue of their
control over the political apparatus of the
Communist Political Association, 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,

1 Following the dissolution of the Communist International in

1943, the Communist Party of the United States dissolved and was
reconstituted as the Communist Political Association. The
program of this Association was one of cooperation between labor
and management, and, in general, one designed to achieve
national unity and peace and prosperity in the post-war period.
 6

namely, a policy which worked for the overthrow of

the Government by force and violence; that the
Communist Party is a highly disciplined
organization, adept at infiltration into strategic
positions, use of aliases, and double-meaning
language; that the Party is rigidly controlled; that
Communists, unlike other political parties, tolerate
no dissension from the policy laid down by the
guiding forces, but that the approved program is
slavishly followed by the members of the Party;
that the literature of the Party and the statements
and activities of its leaders, petitioners here,
advocate, and the general goal of the Party was,
during the period in question, to achieve a
successful overthrow of the existing order by force
and violence. [341 U.S. 494, 499]

I.
It will be helpful in clarifying the issues to treat
next the contention that the trial judge improperly
interpreted the statute by charging that the statute
required an unlawful intent before the jury could
convict. More specifically, he charged that the jury
could not find the petitioners guilty under the
indictment unless they found that petitioners had
the intent to "overthrow . . . the Government of the
United States by force and violence as speedily as
circumstances would permit."
Section 2 (a) (1) makes it unlawful "to
knowingly or willfully advocate, . . . or teach the
duty, necessity, desirability, or propriety of
overthrowing or destroying any government in the
United States by force or violence . . . ."; Section 2
(a) (3), "to organize or help to organize any society,
group, or assembly of persons who teach,
advocate, or encourage the overthrow . . . ."
Because of the fact that 2 (a) (2) expressly requires
a specific intent to overthrow the Government, and
because of the absence of precise language in the
foregoing subsections, it is claimed that Congress
 7

deliberately omitted any such requirement. We do

not agree. It would require a far greater indication
of congressional desire that intent not be made an
element of the crime than the use of the
disjunctive "knowingly or willfully" in 2 (a) (1), or
the omission of exact language in 2 (a) (3). The
structure and purpose of the statute demand the
inclusion of intent as an element of the crime.
Congress was concerned with those who advocate
and organize for the overthrow of the Government.
Certainly those who recruit and combine for the
purpose of advocating overthrow intend to bring
about that overthrow. We hold that the statute
requires as an essential element of the crime proof
of the intent of those who are charged with its
violation to overthrow the Government by force
and violence. See [341 U.S. 494, 500] Williams v.
United States, 341 U.S. 97, 101 -102 (1951);
Screws v. United States, 325 U.S. 91, 101 -105
(1945); Cramer v. United States, 325 U.S. 1,
31 (1945).
Nor does the fact that there must be an
investigation of a state of mind under this
interpretation afford any basis for rejection of that
meaning. A survey of Title 18 of the U.S. Code
indicates that the vast majority of the crimes
designated by that Title require, by express
language, proof of the existence of a certain
mental state, in words such as "knowingly,"
"maliciously," "wilfully," "with the purpose of,"
"with intent to," or combinations or permutations
of these and synonymous terms. The existence of a
mens rea is the rule of, rather than the exception
to, the principles of Anglo-American criminal
jurisprudence. See American Communications
Assn. v. Douds, 339 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
 8

existence of such an intent made the killing

condemned in Screws, supra, and the beating in
Williams, supra, both clearly and severely
punishable under state law, offenses
constitutionally punishable by the Federal
Government. In those cases, the Court required
the Government to prove that the defendants
intended to deprive the victim of a constitutional
right. If that precise mental state may be an
essential element of a crime, surely an intent to
overthrow the Government of the United States by
advocacy thereof is equally susceptible of
proof. 2 [341 U.S. 494, 501]

II.
The obvious purpose of the statute is to protect
existing Government, not from change by
peaceable, lawful and constitutional means, but
from change by violence, revolution and terrorism.
That it is within the power of the Congress to
protect the Government of the United States from
armed rebellion is a proposition which requires
little discussion. Whatever theoretical merit there
may be to the argument that there is a "right" to
rebellion against dictatorial governments is
without force where the existing structure of the
government provides for peaceful and orderly
change. We reject any principle of governmental
helplessness in the face of preparation for
revolution, 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 intended to overthrow
the Government by force and violence. The
2 We have treated this point because of the discussion accorded it
by the Court of Appeals and its importance to the administration
of this statute, compare Johnson v. United States, 318 U.S.
189 (1943), although petitioners themselves requested a charge
similar to the one given, and under Rule 30 of the Federal Rules of
Criminal Procedure would appear to be barred from raising this
point on appeal. Cf. Boyd v. United States, 271 U.S. 104 (1926).
 9

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 attack on the face of the
statute on the grounds that by its terms it prohibits
academic discussion of the merits of Marxism-
Leninism, that it stifles ideas and is contrary to all
concepts of a free speech and a free press.
Although we do not agree that the language itself
has that significance, we must bear in mind that it
is the duty of the federal courts to interpret federal
legislation in a manner not inconsistent with the
demands of the Constitution. American
Communications Assn. v. Douds, 339 U.S. 382,
407 (1950). We are not here confronted with cases
similar to Thornhill v. Alabama, 310 U.S. 88 (1940);
Herndon v. Lowry, 301 U.S. 242(1937); and De
Jonge v. Oregon, 299 U.S. 353 (1937), [341 U.S.
494, 502] where a state court had given a
meaning to a state statute which was inconsistent
with the Federal Constitution. This is a federal
statute which we must interpret as well as judge.
Herein lies the fallacy of reliance upon the manner
in which this Court has treated judgments of state
courts. 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
interpretation which petitioners would have us
impose on that Act. It is directed at advocacy, not
discussion. Thus, the trial judge properly charged
the jury that they could not convict if they found
that petitioners did "no more than pursue peaceful
studies and discussions or teaching and advocacy
in the realm of ideas." He further charged that it
was not unlawful "to conduct in an American
college or university a course explaining the
 10

philosophical theories set forth in the books which

have been placed in evidence." Such a charge is in
strict accord with the statutory language, and
illustrates the meaning to be placed on those
words. Congress did not intend to eradicate the
free discussion of political theories, to destroy the
traditional rights of Americans to discuss and
evaluate ideas without fear of governmental
sanction. Rather Congress was concerned with the
very kind of activity in which the evidence showed
these petitioners engaged.

III.
But although the statute is not directed at the
hypothetical cases which petitioners have
conjured, its application in this case has resulted
in convictions for the teaching and advocacy of the
overthrow of the Government by force and
violence, which, even though coupled with the
intent to accomplish that overthrow, contains an
element of speech. For this reason, we must pay
special [341 U.S. 494, 503] heed to the demands
of the First Amendment marking out the
boundaries of speech.
We pointed out in Douds, supra, that the basis
of the First Amendment is the hypothesis that
speech can rebut speech, propaganda will answer
propaganda, free debate of ideas will result in the
wisest governmental policies. It is for this reason
that this Court has recognized the inherent value
of free discourse. An analysis of the leading cases
in this Court which have involved direct limitations
on speech, however, will demonstrate that both the
majority of the Court and the dissenters in
particular cases have recognized that this is not an
unlimited, unqualified right, but that the societal
value of speech must, on occasion, be
subordinated to other values and considerations.
No important case involving free speech was
decided by this Court prior to Schenck v. United
 11

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 Schenck case that
speech per se received that emphasis in 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 clear and present danger that
they will bring about the substantive evils that
Congress has a right [341 U.S. 494, 504] 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 prosecution
under the same statute. 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 speech
was not referred to specially, we have thought fit
to add a few words." 249 U.S. at 52. The fact is
inescapable, too, that the phrase bore no
connotation that 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 conscription
and its most inciting sentence was, "You must do
your share to maintain, support and uphold the
3 Toledo Newspaper Co. v. United States, 247 U.S. 402 (1918); Fox
v. Washington, 236 U.S. 273(1915); Davis v. Massachusetts, 167
U.S. 43 (1897); see Gompers v. Bucks Stove & Range Co., 221 U.S.
418, 439(1911); Robertson v. Baldwin, 165 U.S. 275, 281 (1897).
 12

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 during war was held to be
a clear and present danger of bringing 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: Frohwerk v. United
States, 249 U.S. 204 (1919) - publication of twelve
newspaper articles attacking the war; Debs v.
United States, 249 U.S. 211 (1919) - one speech
attacking United States' participation in the war;
Abrams v. United States, 250 U.S. 616 (1919) -
circulation of copies of two different socialist
circulars attacking the war; Schaefer v. United
States, 251 U.S. 466 (1920) - publication of a
German-language newspaper with allegedly false
articles, critical of capitalism and the war; Pierce v.
United States, 252 U.S. 239 (1920) - circulation of
copies of a four-page pamphlet written by a
clergyman, attacking [341 U.S. 494, 505] the
purposes of the war and United States'
participation therein. Justice Holmes wrote the
opinions for a unanimous Court in Schenck,
Frohwerk and Debs. He and Justice Brandeis
dissented in Abrams, Schaefer and Pierce. The
basis of these dissents was that, because of the
protection which the First Amendment gives to
speech, the evidence in each case was insufficient
to show that the defendants had created the
requisite danger under Schenck. But these
dissents did not mark a change of principle. The
dissenters doubted only the probable effectiveness
of the puny efforts toward subversion. In Abrams,
they wrote, "I do not doubt for a moment that by
the same reasoning that would justify punishing
persuasion to murder, the United States
 13

constitutionally may punish speech that produces

or is intended to produce a clear and imminent
danger that it will bring about forthwith certain
substantive evils that the United States
constitutionally may seek to prevent." 250 U.S. at
627. And in Schaefer the test was said to be one of
"degree," 251 U.S. at 482, although it is not clear
whether "degree" refers to clear and present
danger or evil. Perhaps both were meant.
The rule we deduce from these cases is that
where an offense is specified by a statute in
nonspeech or nonpress terms, a conviction relying
upon speech or press as evidence of violation may
be sustained only when the speech or publication
created a "clear and present danger" of attempting
or accomplishing the prohibited crime, e. g.,
interference with enlistment. The dissents, we
repeat, in emphasizing the value of speech, were
addressed to the argument of the sufficiency of the
evidence.
The next important case 4 before the Court in
which free speech was the crux of the conflict was
Gitlow v. New York, 268 U.S. 652 (1925). There
New York had [341 U.S. 494, 506] made it a crime
to advocate "the necessity or propriety of
overthrowing . . . organized government by
force . . . ." The evidence of violation of the statute
was that the defendant had published a Manifesto
attacking the Government and capitalism. The
convictions were sustained, Justices Holmes and
Brandeis dissenting. The majority refused to apply
the "clear and present danger" test to the specific
utterance. Its reasoning was as follows: The "clear
and present danger" test was applied to the
utterance itself in Schenck because the question
was merely one of sufficiency of evidence under an
admittedly constitutional statute. Gitlow, however,
presented a different question. There a legislature
4 Cf. Gilbert v. Minnesota, 254 U.S. 325 (1920).
 14

had found that a certain kind of speech was, itself,

harmful and unlawful. The constitutionality of such
a state statute had to be adjudged by this Court
just as it determined the constitutionality of any
state statute, namely, whether the statute was
"reasonable." Since it was entirely reasonable for a
state to attempt to protect itself from violent
overthrow, the statute was perforce reasonable.
The only question remaining in the case became
whether there was evidence to support the
conviction, a question which gave the majority no
difficulty. Justices Holmes and Brandeis refused to
accept this approach, but insisted that wherever
speech was the evidence of the violation, it was
necessary to show that the speech created the
"clear and present danger" of the substantive evil
which the legislature had the 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 [341 U.S.
494, 507] concurring in the result. In their
concurrence they repeated that even though the
legislature had designated certain speech as
criminal, this could not prevent the defendant from
showing that there was no danger that the
substantive evil would be brought about.
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
 15

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 1947. That
section required officials of unions which desired
to avail themselves of the facilities of the National
Labor Relations Board to take oaths that they did
not belong to the Communist Party and that they
did not believe in the overthrow of the Government
by force and violence. We pointed out that
Congress did not intend to punish belief, but
rather intended to regulate the conduct of union
affairs. We therefore held that any indirect
sanction on speech which might arise from the
oath requirement did not present a proper case for
the "clear and present danger" test, for the
regulation was aimed at conduct rather than
speech. In discussing the proper measure of
evaluation of this kind of legislation, we suggested
that the Holmes-Brandeis philosophy insisted that
where [341 U.S. 494, 508] there was a direct
restriction upon speech, a "clear and present
danger" that the substantive evil would be caused
was necessary before the statute in question could
be constitutionally applied. And we stated, "[The
First] Amendment requires that one be permitted
to believe what he will. It requires that one be
permitted to advocate what he will unless there is

5 Contempt of court: Craig v. Harney, 331 U.S. 367,

373 (1947); Pennekamp v. Florida, 328 U.S. 331, 333 -336
(1946); Bridges v. California, 314 U.S. 252, 260 -263
(1941).Validity of state statute: Thomas v. Collins, 323 U.S.
516, 530 (1945); Taylor v. Mississippi, 319 U.S. 583, 589-590
(1943); Thornhill v. Alabama, 310 U.S. 88, 104 -106 (1940).
Validity of local ordinance or regulation: West Virginia
Board of Education v. Barnette, 319 U.S. 624, 639(1943);
Carlson v. California, 310 U.S. 106, 113 (1940).
Common law offense: Cantwell v. Connecticut, 310 U.S.
296, 308 , 311 (1940).
 16

a clear and present danger that a substantial

public evil will result therefrom." 339 U.S. at 412.
But we further suggested that neither Justice
Holmes nor Justice Brandeis ever envisioned that a
shorthand phrase should be crystallized into a
rigid rule to be applied inflexibly without regard to
the circumstances of each case. Speech is not an
absolute, above and beyond control by the
legislature when its judgment, subject to review
here, is that certain kinds of speech are so
undesirable as to warrant criminal sanction.
Nothing is more certain in modern society than the
principle that there are no absolutes, that a name,
a phrase, a standard has meaning only when
associated with the considerations which gave
birth to the nomenclature. See American
Communications Assn. v. Douds, 339 U.S. at 397.
To those who would paralyze our Government in
the face of impending threat by encasing it in a
semantic straitjacket we must reply that all
concepts are relative.
In this case we are squarely presented with the
application of the "clear and present danger" test,
and must decide what that phrase imports. We first
note that many of the cases in which this Court has
reversed convictions by use of this or similar tests
have been based on the fact that the interest
which the State was attempting to protect was
itself too insubstantial to warrant restriction of
speech. In this category we may put such cases as
Schneider v. State, 308 U.S. 147 (1939); Cantwell
v. Connecticut, 310 U.S. 296 (1940); Martin v.
Struthers, 319 U.S. 141 (1943); West Virginia
Board of Education [341 U.S. 494, 509] v.
Barnette, 319 U.S. 624(1943); Thomas v.
Collins, 323 U.S. 516 (1945); Marsh v.
Alabama, 326 U.S. 501 (1946); but cf. Prince v.
Massachusetts, 321 U.S. 158 (1944); Cox v. New
Hampshire, 312 U.S. 569 (1941). Overthrow of the
Government by force and violence is certainly a
 17

substantial enough interest for the Government to

limit speech. Indeed, this is the ultimate value of
any society, for if a society cannot protect its very
structure from armed internal attack, it must
follow that no subordinate value can be protected.
If, then, this interest may be protected, the literal
problem which is presented is what has been
meant by the use of the phrase "clear and present
danger" of the utterances bringing about the evil
within the power of Congress to punish.
Obviously, the words cannot mean that before
the Government may act, it must wait until the
putsch is about to be executed, the plans have
been laid and the signal is awaited. If Government
is aware that a group aiming at its overthrow is
attempting to indoctrinate its members and to
commit them to a course whereby they will strike
when the leaders feel the circumstances permit,
action by the Government is required. The
argument that there is no need for Government to
concern itself, for Government is strong, it
possesses ample powers to put down a rebellion, it
may defeat the revolution with ease needs no
answer. For that is not the question. Certainly an
attempt to overthrow the Government by force,
even though doomed from the outset because of
inadequate numbers of power of the revolutionists,
is a sufficient evil for Congress to prevent. The
damage which such attempts create both
physically and politically to a nation makes it
impossible to measure the validity in terms of the
probability of success, or the immediacy of a
successful attempt. In the instant case the trial
judge charged the jury that they could not convict
unless they found that petitioners intended to
overthrow the Government [341 U.S. 494,
510] "as speedily as circumstances would
permit." This does not mean, and could not
properly mean, that they would not strike until
there was certainty of success. What was meant
 18

was that the revolutionists would strike when they

thought the time was ripe. We must therefore
reject the contention that success or probability of
success is the criterion.
The situation with which Justices Holmes and
Brandeis were concerned in Gitlow was a
comparatively isolated event, bearing little relation
in their minds to any substantial threat to the
safety of the community. Such also is true of cases
like Fiske v. Kansas, 274 U.S. 380 (1927), and De
Jonge v. Oregon, 299 U.S. 353 (1937); but cf. Lazar
v. Pennsylvania, 286 U.S. 532 (1932). They were
not confronted with any situation comparable to
the instant one - the development of an apparatus
designed and dedicated to the overthrow of the
Government, in the context of world crisis after
crisis.
Chief Judge Learned Hand, writing for the
majority below, interpreted the phrase as follows:
"In each case [courts] must ask whether the
gravity of the `evil,' discounted by its
improbability, justifies such invasion of free speech
as is necessary to avoid the danger." 183 F.2d at
212. We adopt this statement of the rule. As
articulated by Chief Judge Hand, it is as succinct
and inclusive as any other we might devise at this
time. It takes into consideration those factors
which we deem relevant, and relates their
significances. More we cannot expect from words.
Likewise, we are in accord with the court
below, which affirmed the trial court's finding that
the requisite danger existed. The mere fact that
from the period 1945 to 1948 petitioners' activities
did not result in an attempt to overthrow the
Government by force and violence is of course no
answer to the fact that there was a group that was
ready to make the attempt. The formation [341
U.S. 494, 511] by petitioners of such a highly
organized conspiracy, with rigidly disciplined
members subject to call when the leaders, these
 19

petitioners, felt that the time had come for action,

coupled with the inflammable nature of world
conditions, similar uprisings in other countries,
and the touch-and-go nature of our relations with
countries with whom petitioners were in the very
least ideologically attuned, convince us that their
convictions were justified on this score. And this
analysis disposes of the contention that a
conspiracy to advocate, as distinguished from the
advocacy itself, cannot be constitutionally
restrained, because it comprises only the
preparation. It is the existence of the conspiracy
which creates the danger. Cf. Pinkerton v. United
States, 328 U.S. 640 (1946); Goldman v. United
States, 245 U.S. 474 (1918); United States v.
Rabinowich, 238 U.S. 78 (1915). If the ingredients
of the reaction are present, we cannot bind the
Government to wait until the catalyst is added.

IV.
Although we have concluded that the finding
that there was a sufficient danger to warrant the
application of the statute was justified on the
merits, there remains the problem of whether the
trial judge's treatment of the issue was correct. He
charged the jury, in relevant part, as follows:
"In further construction and interpretation of
the statute I charge you that it is not the abstract
doctrine of overthrowing or destroying organized
government by unlawful means which is denounced
by this law, but the teaching and advocacy of action
for the accomplishment of that purpose, by
language reasonably and ordinarily calculated to
incite persons to such action. Accordingly, you
cannot find the defendants or any of them guilty of
the crime charged [341 U.S. 494, 512] unless you
are satisfied beyond a reasonable doubt that they
conspired to organize a society, group and assembly
of persons who teach and advocate the overthrow
or destruction of the Government of the United
States by force and violence and to advocate and
 20

teach the duty and necessity of overthrowing or

destroying the Government of the United States by
force and violence, with the intent that such
teaching and advocacy be of a rule or principle of
action and by language reasonably and ordinarily
calculated to incite persons to such action, all with
the intent to cause the overthrow or destruction of
the Government of the United States by force and
violence as speedily as circumstances would
permit.
.....
"If you are satisfied that the evidence
establishes beyond a reasonable doubt that the
defendants, or any of them, are guilty of a violation
of the statute, as I have interpreted it to you, I find
as matter of law that there is sufficient danger of a
substantive evil that the Congress has a right to
prevent to justify the application of the statute
under the First Amendment of the Constitution.
"This is matter of law about which you have no
concern. It is a finding on a matter of law which I
deem essential to support my ruling that the case
should be submitted to you to pass upon the guilt or
innocence of the defendants. . . ."

It is thus clear that he reserved the question of

the existence of the danger for his own
determination, and the question becomes whether
the issue is of such a nature that it should have
been submitted to the jury.
The first paragraph of the quoted instructions
calls for the jury to find the facts essential to
establish the substantive crime, violation of 2 (a)
(1) and 2 (a) (3) of [341 U.S. 494, 513] the Smith
Act, involved in the conspiracy charge. There can
be no doubt that if the jury found those facts
against the petitioners violation of the Act would
be established. The argument that the action of the
trial court is erroneous, in declaring as a matter of
law that such violation shows sufficient danger to
justify the punishment despite the First
Amendment, rests on the theory that a jury must
 21

decide a question of the application of the First

Amendment. We do not agree.
When facts are found that establish the
violation of a statute, the protection against
conviction afforded by the First Amendment is a
matter of law. The doctrine that there must be a
clear and present danger of a substantive evil that
Congress has a right to prevent is a judicial rule to
be applied as a matter of law by the courts. The
guilt is established by proof of facts. Whether the
First Amendment protects the activity which
constitutes the violation of the statute must
depend upon a judicial determination of the scope
of the First Amendment applied to the
circumstances of the case.
Petitioners' reliance upon Justice Brandeis'
language in his concurrence in Whitney, supra, is
misplaced. In that case Justice Brandeis pointed
out that the defendant could have made the
existence of the requisite danger the important
issue at her trial, but that she had not done so. In
discussing this failure, he stated that the
defendant could have had the issue determined by
the court or the jury. 6 No realistic construction of
this disjunctive language [341 U.S. 494,
514] could arrive at the conclusion that he
intended to state that the question was only
determinable by a jury. Nor is the incidental
statement of the majority in Pierce, supra, of any

6 "Whether in 1919, when Miss Whitney did the things

complained of, there was in California such clear and present
danger of serious evil, might have been made the important issue
in the case. She might have required that the issue be determined
either by the court or the jury. She claimed below that the statute
as applied to her violated the Federal Constitution; but she did not
claim that it was void because there was no clear and present
danger of serious evil, nor did she request that the existence of
these conditions of a valid [341 U.S. 494, 514] measure thus
restricting the rights of free speech and assembly be passed upon
by the court or a jury. On the other hand, there was evidence on
which the court or jury might have found that such danger
existed." (Emphasis added.) 274 U.S. at 379.
 22

more persuasive effect. 7 There the issue of the

probable effect of the publication had been
submitted to the jury, and the majority was
apparently addressing its remarks to the
contention of the dissenters that the jury could not
reasonably have returned a verdict of guilty on the
evidence. 8 Indeed, in the very case in which the
phrase was born, Schenck, this Court itself
examined the record to find whether the requisite
danger appeared, and the issue was not submitted
to a jury. And in every later case in which the
Court has measured the validity of a statute by the
"clear and present danger" test, that determination
has been by the court, the question of the danger
not being submitted to the jury.
The question in this case is whether the statute
which the legislature has enacted may be
constitutionally applied. In other words, the Court
must examine judicially [341 U.S. 494, 515] the
application of the statute to the particular
situation, to ascertain if the Constitution prohibits
the conviction. We hold that the statute may be

7 "Whether the printed words would in fact produce as a

proximate result a material interference with the recruiting or
enlistment service, or the operation or success of the forces of the
United States, was a question for the jury to decide in view of all
the circumstances of the time and considering the place and
manner of distribution." 252 U.S. 239, 250 (1920).

8 A similarly worded expression is found in that part of the

majority opinion sustaining the overruling of the defendants'
general demurrer to the indictment. 252 U.S. at 244. Since
the defendants had not raised the issue of "clear and
present danger" at the trial, it is clear that the Court was
not faced with the question whether the trial judge erred in
not determining, as a conclusive matter, the existence or
nonexistence of a "clear and present danger." The only issue
to which the remarks were addressed was whether the
indictment sufficiently alleged the violation.
 23

applied where there is a "clear and present

danger" of the substantive evil which the
legislature had the right to prevent. Bearing, as it
does, the marks of a "question of law," the issue is
properly one for the judge to decide.

V.
There remains to be discussed the question of
vagueness - whether the statute as we have
interpreted it is too vague, not sufficiently advising
those who would speak of the limitations upon
their activity. It is urged that such vagueness
contravenes the First and Fifth Amendments. This
argument is particularly nonpersuasive when
presented by petitioners, who, the jury found,
intended to overthrow the Government as speedily
as circumstances would permit. See Abrams v.
United States, 250 U.S. 616, 627 -629 (1919)
(dissenting opinion); Whitney v. California, 274
U.S. 357, 373 (1927) (concurring opinion); Taylor v.
Mississippi, 319 U.S. 583, 589(1943). A claim of
guilelessness ill becomes those with evil intent.
Williams v. United States, 341 U.S. 97, 101-102
(1951); Jordan v. De George, 341 U.S. 223, 230 -
232 (1951); American Communications Assn. v.
Douds, 339 U.S. at 413; Screws v. United
States, 325 U.S. 91, 101 (1945).
We agree that the standard as defined is not a
neat, mathematical formulary. Like all
verbalizations it is subject to criticism on the score
of indefiniteness. But petitioners themselves
contend that the verbalization "clear and present
danger" is the proper standard. We see no
difference, from the standpoint of vagueness,
whether the standard of "clear and present
danger" is one contained in haec verba within the
statute, or whether it is the judicial measure of
constitutional applicability. We [341 U.S. 494,
516] have shown the indeterminate standard the
phrase necessarily connotes. We do not think we
 24

have rendered that standard any more indefinite

by our attempt to sum up the factors which are
included within its scope. We think it well serves to
indicate to those who would advocate
constitutionally prohibited conduct that there is a
line beyond which they may not go - a line which
they, in full knowledge of what they intend and the
circumstances in which their activity takes place,
will well appreciate and understand. Williams,
supra, at 101-102; Jordan, supra, at 230-232;
United States v. Petrillo, 332 U.S. 1, 7 (1948);
United States v. Wurzbach, 280 U.S. 396,
399 (1930); Nash v. United States, 229 U.S. 373,
376 -377 (1913). Where there is doubt as to the
intent of the defendants, the nature of their
activities, or their power to bring about the evil,
this Court will review the convictions with the
scrupulous care demanded by our Constitution.
But we are not convinced that because there may
be borderline cases at some time in the future,
these convictions should be reversed because of
the argument that these petitioners could not
know that their activities were constitutionally
proscribed by the statute.
We have not discussed many of the questions
which could be extracted from the record,
although they were treated in detail by the court
below. Our limited grant of the writ of certiorari
has withdrawn from our consideration at this date
those questions, which include, inter alia,
sufficiency of the evidence, composition of jury,
and conduct of the trial.
We hold that 2 (a) (1), 2 (a) (3) and 3 of the
Smith Act do not inherently, or as construed or
applied in the instant case, violate the First
Amendment and other provisions of the Bill of
Rights, or the First and Fifth Amendments because
of indefiniteness. Petitioners intended to overthrow
the Government of the United States as speedily as
the circumstances would permit. Their
 25

conspiracy [341 U.S. 494, 517] to organize the

Communist Party and to teach and advocate the
overthrow of the Government of the United States
by force and violence created a "clear and present
danger" of an attempt to overthrow the
Government by force and violence. They were
properly and constitutionally convicted for
violation of the Smith Act. The judgments of
conviction are
Affirmed.
MR. JUSTICE CLARK took no part in the
consideration or decision of this case.

MR. JUSTICE FRANKFURTER, concurring in

affirmance of the judgment.
The defendants were convicted under 3 of the
Smith Act for conspiring to violate 2 of that Act,
which makes it unlawful "to organize or help to
organize any society, group, or assembly of
persons who teach, advocate, or encourage the
overthrow or destruction of any government in the
United States by force or violence." Act of June 28,
1940, 2 (a) (3), 54 Stat. 670, 671, 18 U.S.C. 10,
now 18 U.S.C. 2385. The substance of the
indictment is that the defendants between April 1,
1945, and July 20, 1948, agreed to bring about the
dissolution of a body known as the Communist
Political Association and to organize in its place
the Communist Party of the United States; that the
aim of the new party was "the overthrow and
destruction of the Government of the United States
by force and violence"; that the defendants were to
assume leadership of the Party and to recruit
members for it and that the Party was to publish
books and conduct classes, teaching the duty and
the necessity of forceful overthrow. The jury found
all the defendants guilty. With one exception, each
 26

was sentenced to imprisonment for five years and

to a fine of $10,000. The convictions were affirmed
by the Court of Appeals for the Second[341 U.S.
494, 518] Circuit. 183 F.2d 201. We were asked to
review this affirmance on all the grounds
considered by the Court of Appeals. These
included not only the scope of the freedom of
speech guaranteed by the Constitution, but also
serious questions regarding the legal composition
of the jury and the fair conduct of the trial. We
granted certiorari, strictly limited, however, to the
contention that 2 and 3 of the Smith Act,
inherently and as applied, violated the First and
Fifth Amendments. 340 U.S. 863 . No attempt was
made to seek an enlargement of the range of
questions thus defined, and these alone are now
open for our consideration. All others are
foreclosed by the decision of the Court of Appeals.
As thus limited, the controversy in this Court
turns essentially on the instructions given to the
jury for determining guilt or innocence. 9 F. R. D.
367. The first question is whether - wholly apart
from constitutional matters - the judge's charge
properly explained to the jury what it is that the
Smith Act condemns. The conclusion that he did so
requires no labored argument. On the basis of the
instructions, the jury found, for the purpose of our
review, that the advocacy which the defendants
conspired to promote was to be a rule of action, by
language reasonably calculated to incite persons
to such action, and was intended to cause the
overthrow of the Government by force and
violence as soon as circumstances permit. This
brings us to the ultimate issue. In enacting a
statute which makes it a crime for the defendants
to conspire to do what they have been found to
have conspired to do, did Congress exceed its
constitutional power?
Few questions of comparable import have come
before this Court in recent years. The appellants
 27

maintain that they have a right to advocate a

political theory, so long, at least, as their advocacy
does not create an immediate danger of obvious
magnitude to the very existence of [341 U.S. 494,
519] our present scheme of society. On the other
hand, the Government asserts the right to
safeguard the security of the Nation by such a
measure as the Smith Act. Our judgment is thus
solicited on a conflict of interests of the utmost
concern to the well-being of the country. This
conflict of interests cannot be resolved by a
dogmatic preference for one or the other, nor by a
sonorous formula which is in fact only a
euphemistic disguise for an unresolved conflict. If
adjudication is to be a rational process, we cannot
escape a candid examination of the conflicting
claims with full recognition that both are
supported by weighty title-deeds.

I.
There come occasions in law, as elsewhere,
when the familiar needs to be recalled. Our whole
history proves even more decisively than the
course of decisions in this Court that the United
States has the powers inseparable from a
sovereign nation. "America has chosen to be, in
many respects, and to many purposes, a nation;
and for all these purposes, her government is
complete; to all these objects, it is competent."
Chief Justice Marshall in Cohens v. Virginia, 6
Wheat. 264, 414. The right of a government to
maintain its existence - self-preservation - is the
most pervasive aspect of sovereignty. "Security
against foreign danger," wrote Madison, "is one of
the primitive objects of civil society." The
Federalist, No. 41. The constitutional power to act
upon this basic principle has been recognized by
this Court at different periods and under diverse
circumstances. "To preserve its independence, and
give security against foreign aggression and
 28

encroachment, is the highest duty of every nation,

and to attain these ends nearly all other
considerations are to be subordinated. It matters
not in what form such aggression and
encroachment come . . . . The government,
possessing the powers which are to be
exercised [341 U.S. 494, 520] for protection and
security, is clothed with authority to determine the
occasion on which the powers shall be called
forth . . . ." Chinese Exclusion Case, 130 U.S. 581,
606 . See also De Lima v. Bidwell, 182 U.S. 1 ;
Mackenzie v. Hare, 239 U.S. 299 ; Missouri v.
Holland, 252 U.S. 416 ; United States v. Curtiss-
Wright Corp., 299 U.S. 304 . The most tragic
experience in our history is a poignant reminder
that the Nation's continued existence may be
threatened from within. To protect itself from such
threats, the Federal Government "is invested with
all those inherent and implied powers which, at
the time of adopting the Constitution, were
generally considered to belong to every
government as such, and as being essential to the
exercise of its functions." Mr. Justice Bradley,
concurring in Legal Tender Cases, 12 Wall. 457,
554, 556; and see In re Debs, 158 U.S. 564, 582 .
But even the all-embracing power and duty of
self-preservation are not absolute. Like the war
power, which is indeed an aspect of the power of
self-preservation, it is subject to applicable
constitutional limitations. See Hamilton v.
Kentucky Distilleries Co., 251 U.S. 146, 156 . Our
Constitution has no provision lifting restrictions
upon governmental authority during periods of
emergency, although the scope of a restriction may
depend on the circumstances in which it is
invoked.
The First Amendment is such a restriction. It
exacts obedience even during periods of war; it is
applicable when war clouds are not figments of the
imagination no less than when they are. The First
 29

Amendment categorically demands that "Congress

shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof;
or abridging the freedom of speech, or of the
press; or the right of the people peaceably to
assemble, and to petition the Government for a
redress of grievances." The right of a man to think
what he [341 U.S. 494, 521] pleases, to write
what he thinks, and to have his thoughts made
available for others to hear or read has an
engaging ring of universality. The Smith Act and
this conviction under it no doubt restrict the
exercise of free speech and assembly. Does that,
without more, dispose of the matter?
Just as there are those who regard as
invulnerable every measure for which the claim of
national survival is invoked, there are those who
find in the Constitution a wholly unfettered right of
expression. Such literalness treats the words of the
Constitution as though they were found on a piece
of outworn parchment instead of being words that
have called into being a nation with a past to be
preserved for the future. The soil in which the Bill
of Rights grew was not a soil of arid pedantry. The
historic antecedents of the First Amendment
preclude the notion that its purpose was to give
unqualified immunity to every expression that
touched on matters within the range of political
interest. The Massachusetts Constitution of 1780
guaranteed free speech; yet there are records of at
least three convictions for political libels obtained
between 1799 and 1803. 9The Pennsylvania
Constitution of 1790 and the Delaware
Constitution of 1792 expressly imposed liability for
abuse of the right of free speech. 10 Madison's own

9 Mass. Const., 1780, Part I, Art. XVI. See Duniway, Freedom of

the Press in Massachusetts, 144-146.

10 Pa. Const., 1790, Art. IX, 7; Del. Const., 1792, Art. I, 5.

 30

State put on its books in 1792 a statute confining

the abusive exercise of the right of utterance. 11
And it deserves to be noted that in writing to John
Adams's wife, Jefferson did not rest his
condemnation of the Sedition Act of 1798 on his
belief in [341 U.S. 494, 522] unrestrained
utterance as to political matter. The First
Amendment, he argued, reflected a limitation upon
Federal power, leaving the right to enforce
restrictions on speech to the States. 12 [341 U.S.
494, 523]
The language of the First Amendment is to be
read not as barren words found in a dictionary but
as symbols of historic experience illumined by the

11 The General Assembly of Virginia passed a statute on

December 26, 1792, directed at establishment of "any government
separate from, or independent of the government of Virginia,
within the limits thereof, unless by act of the legislature of this
commonwealth for that [341 U.S. 494, 522] purpose first
obtained." The statute provided that "EVERY person . . . who shall
by writing or advised speaking, endeavour to instigate the people
of this commonwealth to erect or establish such government
without such assent as aforesaid, shall be adjudged guilty of a
high crime and misdemeanor . . . ." Va. Code, 1803, c. CXXXVI.

12 In a letter to Abigail Adams, dated September 11,

1804, Jefferson said with reference to the Sedition
Act:"Nor does the opinion of the unconstitutionality and
consequent nullity of that law remove all restraint from
the overwhelming torrent of slander which is
confounding all vice and virtue, all truth and falsehood
in the US. The power to do that is fully possessed by the
several state legislatures. It was reserved to them, and
was denied to the general government, by the
constitution according to our construction of it. While
we deny that Congress have a right to controul the
freedom of the press, we have ever asserted the right of
the states, and their exclusive right, to do so."

The letter will be published in a forthcoming volume of

The Papers of Thomas Jefferson (Boyd ed.), to which I am
indebted for its reproduction here in its exact form.
 31

presuppositions of those who employed them. Not

what words did Madison and Hamilton use, but
what was it in their minds which they conveyed?
Free speech is subject to prohibition of those
abuses of expression which a civilized society may
forbid. As in the case of every other provision of
the Constitution that is not crystallized by the
nature of its technical concepts, the fact that the
First Amendment is not self-defining and self-
The Sedition Act of July 14, 1798, was directed at two
types of conduct. Section 1 made it a criminal offense to
conspire "to impede the operation of any law of the United
States," and to "counsel, advise or attempt to procure any
insurrection, riot, unlawful assembly, or combination."
Section 2 provided:
"That if any person shall write, print, utter or
publish, or shall cause or procure to be written, printed,
uttered or published, or shall knowingly and willingly
assist or aid in writing, printing, uttering or publishing
any false, scandalous and malicious writing or writings
against the government of the United States, or either
house of the Congress of the United States, or the
President of the United States, with intent to defame the
said government, or either house of the said Congress,
or the said President, or to bring them, or either of
them, into contempt or disrepute; or to excite against
them, or either or any of them, the hatred of the good
people of the United States, or to stir up sedition within
the United States, or to excite any unlawful
combinations therein, for opposing or resisting any law
of the United [341 U.S. 494, 523] States, or any act of
the President of the United States, done in pursuance of
any such law, or of the powers in him vested by the
constitution of the United States, or to resist, oppose, or
defeat any such law or act, or to aid, encourage or abet
any hostile designs of any foreign nation against the
United States, their people or government, then such
person, being thereof convicted before any court of the
United States having jurisdiction thereof, shall be
punished by a fine not exceeding two thousand dollars,
and by imprisonment not exceeding two years." 1 Stat.
596-597.

No substantial objection was raised to 1 of the Act. The

argument against the validity of 2 is stated most fully in the
 32

enforcing neither impairs its usefulness nor

compels its paralysis as a living instrument. [341
U.S. 494, 524]
"The law is perfectly well settled," this Court
said over fifty years ago, "that the first ten
amendments to the Constitution, commonly known
as the Bill of Rights, were not intended to lay down
any novel principles of government, but simply to
embody certain guaranties and immunities which
we had inherited from our English ancestors, and
which had from time immemorial been subject to
certain well-recognized exceptions arising from
the necessities of the case. In incorporating these
principles into the fundamental law there was no
intention of disregarding the exceptions, which
continued to be recognized as if they had been
formally expressed." Robertson v. Baldwin, 165
U.S. 275, 281 . That this represents the authentic
view of the Bill of Rights and the spirit in which it
must be construed has been recognized again and
again in cases that have come here within the last
fifty years. See, e. g., Gompers v. United
States, 233 U.S. 604, 610 . Absolute rules would

Virginia Report of 1799-1800. That Report, prepared for the

House of Delegates by a committee of which Madison was
chairman, attempted to establish that the power to regulate
speech was not delegated to the Federal Government by the
Constitution, and that the First Amendment had prohibited
the National Government from exercising the power. In
reply it was urged that power to restrict seditious writing
was implicit in the acknowledged power of the Federal
Government to prohibit seditious acts, and that the liberty
of the press did not extend to the sort of speech restricted
by the Act. See the Report of the Committee of the House of
Representatives to which were referred memorials from the
States, H. R. Rep. No. 110, 5th Cong., 3d Sess., published in
American State Papers, Misc. Vol. 1, p. 181. For an
extensive contemporary account of the controversy, see St.
George Tucker's 1803 edition of Blackstone's
Commentaries, Appendix to Vol. First, Part Second, Note G.
 33

inevitably lead to absolute exceptions, and such

exceptions would eventually corrode the
rules. The demands of free speech in a
13

democratic society as well as the interest [341 U.S.

494, 525] in national security are better served
by candid and informed weighing of the competing
interests, within the confines of the judicial
process, than by announcing dogmas too inflexible
for the non-Euclidian problems to be solved.
But how are competing interests to be
assessed? Since they are not subject to
quantitative ascertainment, the issue necessarily
resolves itself into asking, who is to make the
adjustment? - who is to balance the relevant
factors and ascertain which interest is in the
circumstances to prevail? Full responsibility for
the choice cannot be given to the courts. Courts
are not representative bodies. They are not
designed to be a good reflex of a democratic
society. Their judgment is best informed, and
therefore most dependable, within narrow limits.
Their essential quality is detachment, founded on
independence. History teaches that the
independence of the judiciary is jeopardized when
courts become embroiled in the passions of the
day and assume primary responsibility in choosing

13 Professor Alexander Meiklejohn is a leading exponent of the

absolutist interpretation of the First Amendment. Recognizing
that certain forms of speech require regulation, he excludes those
forms of expression entirely from the protection accorded by the
Amendment. "The constitutional status of a merchant advertising
his wares, of a paid lobbyist fighting for the advantage of his
client, is utterly different from that of a citizen who is planning for
the general welfare." Meiklejohn, Free Speech, 39. "The radio as
it now operates among us is not free. Nor is it entitled to the
protection of the First Amendment. It is not engaged in the task of
enlarging and enriching human communication. It is engaged in
making money." Id. at 104. Professor Meiklejohn even suggests
that scholarship may now require such subvention and control
that it no longer is entitled to protection by the First Amendment.
See id. at 99-100. Professor Chafee in his review of the Meiklejohn
book, 62 Harv. L. Rev. 891, has subjected this position to
trenchant comment.
 34

between competing political, economic and social

pressures.
Primary responsibility for adjusting the
interests which compete in the situation before us
of necessity belongs to the Congress. The nature of
the power to be exercised by this Court has been
delineated in decisions not charged with the
emotional appeal of situations such as that now
before us. We are to set aside the judgment of
those whose duty it is to legislate only if there is
no reasonable basis for it. Sinking-Fund Cases, 99
U.S. 700, 718 ; Mugler v. Kansas, 123 U.S. 623,
660 -661; United States v. Carolene Products
Co., 304 U.S. 144 . We are to determine whether a
statute is sufficiently definite to meet the
constitutional requirements of due process, and
whether it respects the safeguards against undue
concentration of authority secured by separation of
power. United States v. Cohen Grocery Co., 255
U.S. 81 . [341 U.S. 494, 526] We must assure
fairness of procedure, allowing full scope to
governmental discretion but mindful of its impact
on individuals in the context of the problem
involved. Joint Anti-Fascist Refugee Comm. v.
McGrath, 341 U.S. 123 . And, of course, the
proceedings in a particular case before us must
have the warrant of substantial proof. Beyond
these powers we must not go; we must
scrupulously observe the narrow limits of judicial
authority even though self-restraint is alone set
over us. Above all we must remember that this
Court's power of judicial review is not "an exercise
of the powers of a super-legislature." Mr. Justice
Brandeis and Mr. Justice Holmes, dissenting in
Burns Baking Co. v. Bryan, 264 U.S. 504, 534 .
A generation ago this distribution of
responsibility would not have been questioned. See
Fox v. Washington,236 U.S. 273 ; Meyer v.
Nebraska, 262 U.S. 390 ; Bartels v. Iowa, 262 U.S.
404 ; cf. New York ex rel. Bryant v.
 35

Zimmerman, 278 U.S. 63 . But in recent decisions

we have made explicit what has long been
implicitly recognized. In reviewing statutes which
restrict freedoms protected by the First
Amendment, we have emphasized the close
relation which those freedoms bear to
maintenance of a free society. See Kovacs v.
Cooper, 336 U.S. 77, 89 , 95 (concurring). Some
members of the Court - and at times a majority -
have done more. They have suggested that our
function in reviewing statutes restricting freedom
of expression differs sharply from our normal duty
in sitting in judgment on legislation. It has been
said that such statutes "must be justified by clear
public interest, threatened not doubtfully or
remotely, but by clear and present danger. The
rational connection between the remedy provided
and the evil to be curbed, which in other contexts
might support legislation against attack on due
process grounds, will not suffice." Thomas v.
Collins, 323 U.S. 516, 530 . It has been suggested,
with the casualness of a footnote, that such
legislation is not [341 U.S. 494,
527] presumptively valid, see United States v.
Carolene Products Co., 304 U.S. 144, 152 , n. 4,
and it has been weightily reiterated that freedom
of speech has a "preferred position" among
constitutional safeguards. Kovacs v. Cooper, 336
U.S. 77, 88 .
The precise meaning intended to be conveyed
by these phrases need not now be pursued. It is
enough to note that they have recurred in the
Court's opinions, and their cumulative force has,
not without justification, engendered belief that
there is a constitutional principle, expressed by
those attractive but imprecise words, prohibiting
restriction upon utterance unless it creates a
situation of "imminent" peril against which
 36

legislation may guard. 14It is on this body of the

Court's pronouncements that the defendants'
argument here is based.
In all fairness, the argument cannot be met by
reinterpreting the Court's frequent use of "clear"
and "present" to mean an entertainable
"probability." In giving this meaning to the phrase
"clear and present danger," the Court of Appeals
was fastidiously confining the rhetoric of opinions
to the exact scope of what was decided by them.
We have greater responsibility for having given
constitutional support, over repeated protests, to
uncritical libertarian generalities. [341 U.S. 494,
528]
Nor is the argument of the defendants
adequately met by citing isolated cases.
Adjustment of clash of interests which are at once
subtle and fundamental is not likely to reveal
entire consistency in a series of instances
presenting the clash. It is not too difficult to find
what one seeks in the language of decisions
reporting the effort to reconcile free speech with
the interests with which it conflicts. The case for
the defendants requires that their conviction be
tested against the entire body of our relevant
decisions. Since the significance of every
14 In Hartzel v. United States, 322 U.S. 680, 687 , the
Court reversed a conviction for wilfully causing
insubordination in the military forces on the ground that the
intent required by the statute was not shown. It added that
there was a second element necessary to conviction,
"consisting of a clear and present danger that the activities
in question will bring about the substantive evils which
Congress has a right to prevent. Schenck v. United
States, 249 U.S. 47 . Both elements must be proved by the
Government beyond a reasonable doubt."Other passages
responsible for attributing to the Court the principle that
imminence of the apprehended evil is necessary to
conviction in free-speech cases are collected in an Appendix
to this opinion, post, p. 556.
 37

expression of thought derives from the

circumstances evoking it, results reached rather
than language employed give the vital meaning.
See Cohens v. Virginia, 6 Wheat. 264, 442;
Wambaugh, The Study of Cases, 10.
There is an added reason why we must turn to
the decisions. "Great cases," it is appropriate to
remember, "like hard cases make bad law. For
great cases are called great, not by reason of their
real importance in shaping the law of the future,
but because of some accident of immediate
overwhelming interest which appeals to the
feelings and distorts the judgment. These
immediate interests exercise a kind of hydraulic
pressure which makes what previously was clear
seem doubtful, and before which even well settled
principles of law will bend." Mr. Justice Holmes,
dissenting in Northern Securities Co. v. United
States, 193 U.S. 197, 400 -401.
This is such a case. Unless we are to
compromise judicial impartiality and subject these
defendants to the risk of an ad hoc judgment
influenced by the impregnating atmosphere of the
times, the constitutionality of their conviction must
be determined by principles established in cases
decided in more tranquil periods. If those
decisions are to be used as a guide and not as an
argument, it is important to view them as a whole
and to distrust the easy generalizations to which
some of them lend themselves. [341 U.S. 494,
529]

II.
We have recognized and resolved conflicts
between speech and competing interests in six
different types of cases. 15
15 No useful purpose would be served by considering here
decisions in which the Court treated the challenged regulation as
though it imposed no real restraint on speech or on the press. E.
g., Associated Press v. Labor Board, 301 U.S. 103 ; Valentine v.
Chrestensen, 316 U.S. 52 ; Railway Express Agency v. New
 38

1. The cases involving a conflict between the

interest in allowing free expression of ideas in
public places and the interest in protection of the
public peace and the primary uses of streets and
parks, were too recently considered to be
rehearsed here. Niemotko v. Maryland, 340 U.S.
268, 273 . It suffices to recall that the result in
each case was found to turn on the character of
the interest with which the speech clashed, the
method used to impose the restriction, and the
nature and circumstances of the utterance
prohibited. While the decisions recognized the
importance of free speech and carefully
scrutinized the justification for its regulation, they
rejected the notion that vindication of the deep
public interest in freedom of expression requires
subordination of all conflicting values.
2. A critique of the cases testing restrictions on
picketing is made more difficult by the inadequate
recognition by the Court from the outset that the
loyalties and responses evoked and exacted by
picket lines differentiate this form of expression
from other modes of communication. See Thornhill
v. Alabama, 310 U.S. 88 . But the [341 U.S. 494,
530] crux of the decision in the Thornhill case
was that a State could not constitutionally punish
peaceful picketing when neither the aim of the
picketing nor the manner in which it was carried
out conflicted with a substantial interest. In
subsequent decisions we sustained restrictions
designed to prevent recurrence of violence, Milk
Wagon Drivers Union v. Meadowmoor Dairies, 312
U.S. 287 , or reasonably to limit the area of
York,336 U.S. 106 ; Lewis Publishing Co. v. Morgan, 229 U.S. 288 .
We recognized that restrictions on speech were involved in United
States ex rel. Milwaukee Publishing Co. v. Burleson, 255 U.S. 407 ,
and Gilbert v. Minnesota, 254 U.S. 325 ; but the decisions raised
issues so different from those presented here that they too need
not be considered in detail. Our decisions in Stromberg v.
California, 283 U.S. 359 , and Winters v. New York, 333 U.S. 507 ,
turned on the indefiniteness of the statutes.
 39

industrial strife, Carpenters & Joiners Union v.

Ritter's Cafe, 315 U.S. 722 ; cf. Bakery & Pastry
Drivers Local v. Wohl, 315 U.S. 769 . We held that a
State's policy against restraints of trade justified it
in prohibiting picketing which violated that policy,
Giboney v. Empire Storage Co., 336 U.S. 490 ; we
sustained restrictions designed to encourage self-
employed persons, International Brotherhood of
Teamsters Union v. Hanke, 339 U.S. 470 ; and to
prevent racial discrimination, Hughes v. Superior
Court, 339 U.S. 460 . The Fourteenth Amendment
bars a State from prohibiting picketing when there
is no fair justification for the breadth of the
restriction imposed. American Federation of Labor
v. Swing, 312 U.S. 321 ; Cafeteria Employees
Union v. Angelos, 320 U.S. 293 . But it does not
prevent a State from denying the means of
communication that picketing affords in a fair
balance between the interests of trade unionism
and other interests of the community.
3. In three cases we have considered the scope
and application of the power of the Government to
exclude, deport, or denaturalize aliens because of
their advocacy or their beliefs. In United States ex
rel. Turner v. Williams, 194 U.S. 279 , we held that
the First Amendment did not disable Congress
from directing the exclusion of an alien found in an
administrative proceeding to be an anarchist. "[A]s
long as human governments endure," we said,
"they cannot be denied the power of self-
preservation, as that question is presented
here." [341 U.S. 494, 531] 194 U.S. at 294. In
Schneiderman v. United States, 320 U.S. 118 , and
Bridges v. Wixon, 326 U.S. 135 , we did not
consider the extent of the power of Congress. In
each case, by a closely divided Court, we
interpreted a statute authorizing denaturalization
or deportation to impose on the Government the
strictest standards of proof.
 40

4. History regards "freedom of the press" as

indispensable for a free society and for its
government. We have, therefore, invalidated
discriminatory taxation against the press and prior
restraints on publication of defamatory matter.
Grosjean v. American Press Co., 297 U.S. 233 ;
Near v. Minnesota, 283 U.S. 697 .
We have also given clear indication of the
importance we attach to dissemination of ideas in
reviewing the attempts of States to reconcile
freedom of the press with protection of the
integrity of the judicial process. In Pennekamp v.
Florida, 328 U.S. 331 , the Court agreed that the
Fourteenth Amendment barred a State from
adjudging in contempt of court the publisher of
critical and inaccurate comment about portions of
a litigation that for all practical purposes were no
longer pending. We likewise agreed, in a minor
phase of our decision in Bridges v. California, 314
U.S. 252 , that even when statements in the press
relate to matters still pending before a court,
convictions for their publication cannot be
sustained if their utterance is too trivial to be
deemed a substantial threat to the impartial
administration of justice.
The Court has, however, sharply divided on
what constitutes a sufficient interference with the
course of justice. In the first decision, Patterson v.
Colorado, 205 U.S. 454 , the Court affirmed a
judgment for contempt imposed by a State
supreme court for publication of articles reflecting
on the conduct of the court in cases still before it
on[341 U.S. 494, 532] motions for rehearing. In
the Bridges case, however, a majority held that a
State court could not protect itself from the
implied threat of a powerful newspaper that failure
of an elected judge to impose a severe sentence
would be a "serious mistake." The same case also
placed beyond a State's power to punish the
publication of a telegram from the president of an
 41

important union who threatened a damaging strike

in the event of an adverse decision. The majority in
Craig v. Harney, 331 U.S. 367, 376 , held that the
Fourteenth Amendment protected "strong,"
"intemperate," "unfair" criticism of the way an
elected lay judge was conducting a pending civil
case. None of the cases establishes that the public
interest in a free press must in all instances prevail
over the public interest in dispassionate
adjudication. But the Bridges and Craig decisions,
if they survive, tend to require a showing that
interference be so imminent and so demonstrable
that the power theoretically possessed by the State
is largely paralyzed.
5. Our decision in American Communications
Assn. v. Douds, 339 U.S. 382 , recognized that the
exercise of political rights protected by the First
Amendment was necessarily discouraged by the
requirement of the Taft-Hartley Act that officers of
unions employing the services of the National
Labor Relations Board sign affidavits that they are
not Communists. But we held that the statute was
not for this reason presumptively invalid. The
problem, we said, was "one of weighing the
probable effects of the statute upon the free
exercise of the right of speech and assembly
against the congressional determination that
political strikes are evils of conduct which cause
substantial harm to interstate commerce and that
Communists and others identified by 9 (h) pose
continuing threats to that public interest when in
positions of union leadership." [341 U.S. 494,
533] 339 U.S. at 400. On balance, we decided
 42

that the legislative judgment was a permissible

one. 16
6. Statutes prohibiting speech because of its
tendency to lead to crime present a conflict of
interests which bears directly on the problem now
before us. The first case in which we considered
this conflict was Fox v. Washington, supra. The
statute there challenged had been interpreted to
prohibit publication of matter "encouraging an
actual breach of law." We held that the Fourteenth
Amendment did not prohibit application of the
statute to an article which we concluded incited a
breach of laws against indecent exposure. We said
that the statute "lays hold of encouragements that,
apart from statute, if directed to a particular
person's conduct, generally would make him who
uttered them guilty of a misdemeanor if not an
accomplice or a principal in the crime encouraged,
and deals with the publication of them to a wider
and less selected audience." 236 U.S. at 277-278.
To be sure, the Fox case preceded the explicit
absorption of the substance of the First
Amendment in the Fourteenth. But subsequent
decisions extended the Fox principle to free-speech
situations. They are so important to the problem
before us that we must consider them in detail.
(a) The first important application of the
principle was made in six cases arising under the
Espionage Act of 1917. That Act prohibits
conspiracies and attempts [341 U.S. 494, 534] to
"obstruct the recruiting or enlistment service." In
each of the first three cases, Mr. Justice Holmes

16 The Taft-Hartley Act also requires that an officer of a union

using the services of the National Labor Relations Board take oath
that he "does not believe in, and is not a member of or supports
any organization that believes in or teaches, the overthrow of the
United States Government by force or by any illegal or
unconstitutional methods." The Court divided on the validity of
this requirement. Test oaths raise such special problems that
decisions on their validity are not directly helpful here. See West
Virginia Board of Education v. Barnette, 319 U.S. 624 .
 43

wrote for a unanimous Court, affirming the

convictions. The evidence in Schenck v. United
States, 249 U.S. 47 , showed that the defendant
had conspired to circulate among men called for
the draft 15,000 copies of a circular which
asserted a "right" to oppose the draft. The
defendant in Frohwerk v. United States, 249 U.S.
204 , was shown to have conspired to publish in a
newspaper twelve articles describing the
sufferings of American troops and the futility of
our war aims. The record was inadequate, and we
said that it was therefore "impossible to say that it
might not have been found that the circulation of
the paper was in quarters where a little breath
would be enough to kindle a flame and that the
fact was known and relied upon by those who sent
the paper out." 249 U.S. at 209. In Debs v. United
States,249 U.S. 211 , the indictment charged that
the defendant had delivered a public speech
expounding socialism and praising Socialists who
had been convicted of abetting violation of the
draft laws.
The ground of decision in each case was the
same. The First Amendment "cannot have been,
and obviously was not, intended to give immunity
for every possible use of language. Robertson v.
Baldwin, 165 U.S. 275, 281 ." Frohwerk v. United
States, supra, at 206. "The question in every case
is whether the words used are used in such
circumstances and are of such a nature as to
create a clear and present danger that they will
bring about the substantive evils that Congress has
a right to prevent. It is a question of proximity and
degree." Schenck v. United States, supra, at 52.
When "the words used had as their natural
tendency and reasonably probable effect to
obstruct the recruiting service," and "the
defendant had the specific intent to do so in his
mind," conviction in wartime is not prohibited by
 44

the Constitution. Debs v. United States, supra, at

216. [341 U.S. 494, 535]
In the three succeeding cases Holmes and
Brandeis, JJ., dissented from judgments of the
Court affirming convictions. The indictment in
Abrams v. United States, 250 U.S. 616 , was laid
under an amendment to the Espionage Act which
prohibited conspiracies to advocate curtailment of
production of material necessary to prosecution of
the war, with the intent thereby to hinder the
United States in the prosecution of the war. It
appeared that the defendants were anarchists who
had printed circulars and distributed them in New
York City. The leaflets repeated standard Marxist
slogans, condemned American intervention in
Russia, and called for a general strike in protest.
In Schaefer v. United States, 251 U.S. 466 , the
editors of a German-language newspaper in
Philadelphia were charged with obstructing the
recruiting service and with wilfully publishing false
reports with the intent to promote the success of
the enemies of the United States. The evidence
showed publication of articles which accused
American troops of weakness and mendacity and
in one instance misquoted or mistranslated two
words of a Senator's speech. The indictment in
Pierce v. United States, 252 U.S. 239 , charged that
the defendants had attempted to cause
insubordination in the armed forces and had
conveyed false reports with intent to interfere with
military operations. Conviction was based on
circulation of a pamphlet which belittled Allied war
aims and criticized conscription in strong terms.
In each case both the majority and the
dissenting opinions relied on Schenck v. United
States. The Court divided on its view of the
evidence. The majority held that the jury could
infer the required intent and the probable effect of
the articles from their content. Holmes and
Brandeis, JJ., thought that only "expressions of
 45

opinion and exhortations," 250 U.S. at 631, were

involved, that they were "puny anonymities," 250
U.S. at 629, "impotent to produce the evil against
which the statute aimed," [341 U.S. 494, 536] 251
U.S. 493 , and that from them the specific intent
required by the statute could not reasonably be
inferred. The Court agreed that an incitement to
disobey the draft statute could constitutionally be
punished. It disagreed over the proof required to
show such an incitement.
(b) In the eyes of a majority of the Court, Gitlow
v. New York, 268 U.S. 652 , presented a very
different problem. There the defendant had been
convicted under a New York statute nearly
identical with the Smith Act now before us. The
evidence showed that the defendant was an official
of the Left Wing Section of the Socialist Party, and
that he was responsible for publication of a Left
Wing Manifesto. This document repudiated
"moderate Socialism," and urged the necessity of a
militant "revolutionary Socialism," based on class
struggle and revolutionary mass action. No
evidence of the effect of the Manifesto was
introduced; but the jury were instructed that they
could not convict unless they found that the
document advocated employing unlawful acts for
the purpose of overthrowing organized
government.
The conviction was affirmed. The question, the
Court held, was entirely different from that
involved in Schenck v. United States, where the
statute prohibited acts without reference to
language. Here, where "the legislative body has
determined generally, in the constitutional exercise
of its discretion, that utterances of a certain kind
involve such danger of substantive evil that they
may be punished, the question whether any
specific utterance coming within the prohibited
class is likely, in and of itself, to bring about the
substantive evil, is not open to consideration." 268
 46

U.S. at 670. It is sufficient that the defendant's

conduct falls within the statute, and that the
statute is a reasonable exercise of legislative
judgment.
This principle was also applied in Whitney v.
California, 274 U.S. 357 , to sustain a conviction
under a State criminal syndicalism statute. That
statute made it a [341 U.S. 494, 537] felony to
assist in organizing a group assembled to advocate
the commission of crime, sabotage, or unlawful
acts of violence as a means of effecting political or
industrial change. The defendant was found to
have assisted in organizing the Communist Labor
Party of California, an organization found to have
the specified character. It was held that the
legislature was not unreasonable in believing
organization of such a party "involves such danger
to the public peace and the security of the State,
that these acts should be penalized in the exercise
of its police power." 274 U.S. at 371.
In neither of these cases did Mr. Justice Holmes
and Mr. Justice Brandeis accept the reasoning of
the Court. "`The question,'" they said, quoting
from Schenck v. United States, "`in every case is
whether the words used are used in such
circumstances and are of such a nature as to
create a clear and present danger that they will
bring about the substantive evils that [the State]
has a right to prevent.'" 268 U.S. at 672-673. Since
the Manifesto circulated by Gitlow "had no chance
of starting a present conflagration," 268 U.S. at
673, they dissented from the affirmance of his
conviction. In Whitney v. California, they
concurred in the result reached by the Court, but
only because the record contained some evidence
that organization of the Communist Labor Party
might further a conspiracy to commit immediate
 47

serious crimes, and the credibility of the evidence

was not put in issue by the defendant. 17
(c) Subsequent decisions have added little to
the principles established in these two groups of
cases. In the only case arising under the Espionage
Act decided by this Court during the last war, the
substantiality of the evidence was the crucial
issue. The defendant in Hartzel [341 U.S. 494,
538] v. United States, 322 U.S. 680 , was an
educated man and a citizen, not actively affiliated
with any political group. In 1942 he wrote three
articles condemning our wartime allies and urging
that the war be converted into a racial conflict. He
mailed the tracts to 600 people, including high-
ranking military officers. According to his
testimony his intention was to "create sentiment
against war amongst the white races." The
majority of this Court held that a jury could not
reasonably infer from these facts that the
defendant had acted with a specific intent to cause
insubordination or disloyalty in the armed forces.
Of greater importance is the fact that the issue
of law which divided the Court in the Gitlow and
Whitney cases has not again been clearly raised,
although in four additional instances we have
reviewed convictions under comparable statutes.
Fiske v. Kansas, 274 U.S. 380 , involved a criminal
syndicalism statute similar to that before us in
Whitney v. California. We reversed a conviction
based on evidence that the defendant exhibited an
innocuous preamble to the constitution of the
Industrial Workers of the World in soliciting
members for that organization. In Herndon v.
Lowry, 301 U.S. 242 , the defendant had solicited
members for the Communist Party, but there was
no proof that he had urged or even approved those
of the Party's aims which were unlawful. We
17 Burns v. United States, 274 U.S. 328 , adds nothing to the
decision in Whitney v. California.
 48

reversed a conviction obtained under a statute

prohibiting an attempt to incite to insurrection by
violence, on the ground that the Fourteenth
Amendment prohibited conviction where on the
evidence a jury could not reasonably infer that the
defendant had violated the statute the State
sought to apply. 18 [341 U.S. 494, 539]
The other two decisions go no further than to
hold that the statute as construed by the State
courts exceeded the bounds of a legislative
judgment founded in reason. The statute presented
in De Jonge v. Oregon, 299 U.S. 353 , had been
construed to apply to anyone who merely assisted
in the conduct of a meeting held under the
auspices of the Communist Party. In Taylor v.
Mississippi, 319 U.S. 583 , the statute prohibited
dissemination of printed matter "designed and
calculated to encourage violence, sabotage, or
disloyalty to the government of the United States,
or the state of Mississippi." We reversed a
conviction for what we concluded was mere
criticism and prophesy, without indicating whether
we thought the statute could in any circumstances
validly be applied. What the defendants
communicated, we said, "is not claimed or shown
to have been done with an evil or sinister purpose,
to have advocated or incited subversive action
against the nation or state, or to have threatened
any clear and present danger to our institutions or
our Government." 319 U.S. at 589-590.
I must leave to others the ungrateful task of
trying to reconcile all these decisions. In some
instances we have too readily permitted juries to
infer deception from error, or intention from
argumentative or critical statements. Abrams v.
18 In Herndon v. Georgia, 295 U.S. 441 , the opinion of the Court
was concerned solely with a question of procedure. Mr. Justice
Brandeis, Mr. Justice Stone, and Mr. Justice Cardozo, however,
thought that the problem of Gitlow v. New York was raised. See
295 U.S. at 446.
 49

United States, supra; Schaefer v. United States,

supra; Pierce v. United States, supra; Gilbert v.
Minnesota, 254 U.S. 325 . In other instances we
weighted the interest in free speech so heavily that
we permitted essential conflicting values to be
destroyed. Bridges v. California, supra; Craig v.
Harney, supra. Viewed as a whole, however, the
decisions express an attitude toward the judicial
function and a standard of values which for me are
decisive of the case before us.
First. - Free-speech cases are not an exception
to the principle that we are not legislators, that
direct policymaking is not our province. How best
to reconcile competing [341 U.S. 494,
540] interests is the business of legislatures, and
the balance they strike is a judgment not to be
displaced by ours, but to be respected unless
outside the pale of fair judgment.
On occasion we have strained to interpret
legislation in order to limit its effect on interests
protected by the First Amendment. Schneiderman
v. United States, supra; Bridges v. Wixon, supra. In
some instances we have denied to States the
deference to which I think they are entitled.
Bridges v. California, supra; Craig v. Harney, supra.
Once in this recent course of decisions the Court
refused to permit a jury to draw inferences which
seemed to me to be obviously reasonable. Hartzel
v. United States, supra.
But in no case has a majority of this Court held
that a legislative judgment, even as to freedom of
utterance, may be overturned merely because the
Court would have made a different choice between
the competing interests had the initial legislative
judgment been for it to make. In the cases in which
the opinions go farthest towards indicating a total
rejection of respect for legislative determinations,
the interests between which choice was actually
made were such that decision might well have
been expressed in the familiar terms of want of
 50

reason in the legislative judgment. In Thomas v.

Collins, 323 U.S. 516 , for example, decision could
not unreasonably have been placed on the ground
that no substantial interest justified a State in
requiring an out-of-State labor leader to register
before speaking in advocacy of the cause of trade
unionism. In Martin v. City of Struthers, 319 U.S.
141 , it was broadly held that a municipality was
not justified in prohibiting knocking on doors and
ringing doorbells for the purpose of delivering
handbills. But since the good faith and
reasonableness of the regulation were placed in
doubt by the fact that the city did not think it
necessary also to prohibit door-to-door
commercial [341 U.S. 494, 541] sales, decision
could be sustained on narrower ground. And
compare Breard v. Alexandria, post, p. 622,
decided this day.
In other cases, moreover, we have given clear
indication that even when free speech is involved
we attach great significance to the determination
of the legislature. Gitlow v. New York, supra;
Whitney v. California, supra; American
Communications Assn. v. Douds, supra; cf. Bridges
v. California, 314 U.S. at 260. And see Hughes v.
Superior Court, supra; International Brotherhood
of Teamsters Union v. Hanke, supra.
In Gitlow v. New York, we put our respect for
the legislative judgment in terms which, if they
were accepted here, would make decision easy. For
that case held that, when the legislature has
determined that advocacy of forceful overthrow
should be forbidden, a conviction may be sustained
without a finding that in the particular case the
advocacy had a close relation to a serious attempt
at overthrow. We held that it was enough that the
statute be a reasonable exercise of the legislative
judgment, and that the defendant's conduct fall
within the statute.
 51

One of the judges below rested his affirmance

on the Gitlow decision, and the defendants do not
attempt to distinguish the case. They place their
argument squarely on the ground that the case has
been overruled by subsequent decisions. It has not
been explicitly overruled. But it would be
disingenuous to deny that the dissent in Gitlow has
been treated with the respect usually accorded to
a decision.
The result of the Gitlow decision was to send a
leftwing Socialist to jail for publishing a Manifesto
expressing Marxist exhortations. It requires
excessive tolerance of the legislative judgment to
suppose that the Gitlow publication in the
circumstances could justify serious concern. [341
U.S. 494, 542]
In contrast, there is ample justification for a
legislative judgment that the conspiracy now
before us is a substantial threat to national order
and security. If the Smith Act is justified at all, it is
justified precisely because it may serve to prohibit
the type of conspiracy for which these defendants
were convicted. The court below properly held that
as a matter of separability the Smith Act may be
limited to those situations to which it can
constitutionally be applied. See 183 F.2d at 214-
215. Our decision today certainly does not mean
that the Smith Act can constitutionally be applied
to facts like those in Gitlow v. New York. While
reliance may properly be placed on the attitude of
judicial self-restraint which the Gitlow decision
reflects, it is not necessary to depend on the facts
or the full extent of the theory of that case in order
to find that the judgment of Congress, as applied
to the facts of the case now before us, is not in
conflict with the First Amendment.
Second. - A survey of the relevant decisions
indicates that the results which we have reached
are on the whole those that would ensue from
careful weighing of conflicting interests. The
 52

complex issues presented by regulation of speech

in public places, by picketing, and by legislation
prohibiting advocacy of crime have been resolved
by scrutiny of many factors besides the imminence
and gravity of the evil threatened. The matter has
been well summarized by a reflective student of
the Court's work. "The truth is that the clear-and-
present-danger test is an oversimplified judgment
unless it takes account also of a number of other
factors: the relative seriousness of the danger in
comparison with the value of the occasion for
speech or political activity; the availability of more
moderate controls than those which the state has
imposed; and perhaps the specific intent with
which the speech or activity is launched. No
matter how rapidly we utter the phrase `clear and
present danger,' or how [341 U.S. 494,
543] closely we hyphenate the words, they are
not a substitute for the weighing of values. They
tend to convey a delusion of certitude when what
is most certain is the complexity of the strands in
the web of freedoms which the judge must
disentangle." Freund, On Understanding the
Supreme Court, 27-28.
It is a familiar experience in the law that new
situations do not fit neatly into legal conceptions
that arose under different circumstances to satisfy
different needs. So it was when the injunction was
tortured into an instrument of oppression against
labor in industrial conflicts. So it is with the
attempt to use the direction of thought lying
behind the criterion of "clear and present danger"
wholly out of the context in which it originated,
and to make of it an absolute dogma and definitive
measuring rod for the power of Congress to deal
with assaults against security through devices
other than overt physical attempts.
Bearing in mind that Mr. Justice Holmes
regarded questions under the First Amendment as
questions of "proximity and degree," Schenck v.
 53

United States, 249 U.S. at 52, it would be a

distortion, indeed a mockery, of his reasoning to
compare the "puny anonymities," 250 U.S. at 629,
to which he was addressing himself in the Abrams
case in 1919 or the publication that was "futile and
too remote from possible consequences," 268 U.S.
at 673, in the Gitlow case in 1925 with the setting
of events in this case in 1950.
"It does an ill-service to the author of the most
quoted judicial phrases regarding freedom of
speech, to make him the victim of a tendency
which he fought all his life, whereby phrases are
made to do service for critical analysis by being
turned into dogma. `It is one of the misfortunes of
the law that ideas become encysted in phrases and
thereafter for a long time cease to provoke further
analysis.' Holmes, J., dissenting, in Hyde v.
United [341 U.S. 494, 544] States, 225 U.S. 347,
384 , at 391." The phrase "clear and present
danger," in its origin, "served to indicate the
importance of freedom of speech to a free society
but also to emphasize that its exercise must be
compatible with the preservation of other
freedoms essential to a democracy and guaranteed
by our Constitution." Pennekamp v. Florida, 328
U.S. 331, 350 , 352-353 (concurring). It were far
better that the phrase be abandoned than that it
be sounded once more to hide from the believers
in an absolute right of free speech the plain fact
that the interest in speech, profoundly important
as it is, is no more conclusive in judicial review
than other attributes of democracy or than a
determination of the people's representatives that
a measure is necessary to assure the safety of
government itself.
Third. - Not every type of speech occupies the
same position on the scale of values. There is no
substantial public interest in permitting certain
kinds of utterances: "the lewd and obscene, the
profane, the libelous, and the insulting or `fighting'
 54

words - those which by their very utterance inflict

injury or tend to incite an immediate breach of the
peace." Chaplinsky v. New Hampshire, 315 U.S.
568, 572 . We have frequently indicated that the
interest in protecting speech depends on the
circumstances of the occasion. See cases collected
in Niemotko v. Maryland, 340 U.S. at 275-283. It is
pertinent to the decision before us to consider
where on the scale of values we have in the past
placed the type of speech now claiming
constitutional immunity.
The defendants have been convicted of
conspiring to organize a party of persons who
advocate the overthrow of the Government by
force and violence. The jury has found that the
object of the conspiracy is advocacy as "a rule or
principle of action," "by language reasonably and
ordinarily calculated to incite persons to such
action," [341 U.S. 494, 545] and with the intent to
cause the overthrow "as speedily as circumstances
would permit."
On any scale of values which we have hitherto
recognized, speech of this sort ranks low.
Throughout our decisions there has recurred a
distinction between the statement of an idea which
may prompt its hearers to take unlawful action,
and advocacy that such action be taken. The
distinction has its root in the conception of the
common law, supported by principles of morality,
that a person who procures another to do an act is
responsible for that act as though he had done it
himself. This principle was extended in Fox v.
Washington, supra, to words directed to the public
generally which would constitute an incitement
were they directed to an individual. It was adapted
in Schenck v. United States, supra, into a rule of
evidence designed to restrict application of the
Espionage Act. It was relied on by the Court in
Gitlow v. New York, supra. The distinction has
been repeated in many of the decisions in which
 55

we have upheld the claims of speech. We

frequently have distinguished protected forms of
expression from statements which "incite to
violence and crime and threaten the overthrow of
organized government by unlawful means."
Stromberg v. California, 283 U.S. at 369. See also
Near v. Minnesota, 283 U.S. at 716; De Jonge v.
Oregon, 299 U.S. at 365; Cantwell v.
Connecticut, 310 U.S. 296, 308 ; Taylor v.
Mississippi, 319 U.S. at 589.
It is true that there is no divining rod by which
we may locate "advocacy." Exposition of ideas
readily merges into advocacy. The same Justice
who gave currency to application of the incitement
doctrine in this field dissented four times from
what he thought was its misapplication. As he said
in the Gitlow dissent, "Every idea is an
incitement." 268 U.S. at 673. Even though
advocacy of overthrow deserves little protection,
we should hesitate to prohibit it if we thereby
inhibit the [341 U.S. 494, 546] interchange of
rational ideas so essential to representative
government and free society.
But there is underlying validity in the
distinction between advocacy and the interchange
of ideas, and we do not discard a useful tool
because it may be misused. That such a distinction
could be used unreasonably by those in power
against hostile or unorthodox views does not
negate the fact that it may be used reasonably
against an organization wielding the power of the
centrally controlled international Communist
movement. The object of the conspiracy before us
is so clear that the chance of error in saying that
the defendants conspired to advocate rather than
to express ideas is slight. MR. JUSTICE DOUGLAS
quite properly points out that the conspiracy
before us is not a conspiracy to overthrow the
Government. But it would be equally wrong to
treat it as a seminar in political theory.
 56

III.
These general considerations underlie decision
of the case before us.
On the one hand is the interest in security. The
Communist Party was not designed by these
defendants as an ordinary political party. For the
circumstances of its organization, its aims and
methods, and the relation of the defendants to its
organization and aims we are concluded by the
jury's verdict. The jury found that the Party rejects
the basic premise of our political system - that
change is to be brought about by nonviolent
constitutional process. The jury found that the
Party advocates the theory that there is a duty and
necessity to overthrow the Government by force
and violence. It found that the Party entertains and
promotes this view, not as a prophetic insight or as
a bit of unworldly speculation, [341 U.S. 494,
547] but as a program for winning adherents and
as a policy to be translated into action.
In finding that the defendants violated the
statute, we may not treat as established fact that
the Communist Party in this country is of
significant size, well-organized, well-disciplined,
conditioned to embark on unlawful activity when
given the command. But in determining whether
application of the statute to the defendants is
within the constitutional powers of Congress, we
are not limited to the facts found by the jury. We
must view such a question in the light of whatever
is relevant to a legislative judgment. We may take
judicial notice that the Communist doctrines which
these defendants have conspired to advocate are
in the ascendency in powerful nations who cannot
be acquitted of unfriendliness to the institutions of
this country. We may take account of evidence
brought forward at this trial and elsewhere, much
of which has long been common knowledge. In
sum, it would amply justify a legislature in
 57

concluding that recruitment of additional members

for the Party would create a substantial danger to
national security.
In 1947, it has been reliably reported, at least
60,000 members were enrolled in the
Party. Evidence was introduced in this case that
19

the membership was organized in small units,

linked by an intricate chain of command, and
protected by elaborate precautions designed to
prevent disclosure of individual identity. There are
no reliable data tracing acts of sabotage or
espionage directly to these defendants. But a
Canadian Royal Commission appointed in 1946 to
investigate espionage reported that it was
"overwhelmingly established" that[341 U.S. 494,
548] "the Communist movement was the principal
base within which the espionage network was
recruited." 20The most notorious spy in recent
history was led into the service of the Soviet Union
through Communist indoctrination. 21 Evidence
supports the conclusion that members of the Party

19 See the testimony of the Director of the Federal Bureau of

Investigation. Hearings before the House Committee on Un-
American Activities, on H. R. 1884 and H. R. 2122, 80th Cong., 1st
Sess., Part 2, p. 37.

20 Report of the Royal Commission to Investigate

Communication of Secret and Confidential Information to
Agents of a Foreign Power, June 27, 1946, p. 44. There
appears to be little reliable evidence demonstrating directly
that the Communist Party in this country has recruited
persons willing to engage in espionage or other unlawful
activity on behalf of the Soviet Union. The defection of a
Soviet diplomatic employee, however, led to a careful
investigation of an espionage network in Canada, and has
disclosed the effectiveness of the Canadian Communist
Party in conditioning its members to disclose to Soviet
agents vital information of a secret character. According to
the Report of the Royal Commission investigating the
network, conspiratorial characteristics of the Party similar
to those shown in the evidence now before us were
instrumental in developing the necessary motivation to
cooperate in the espionage. See pp. 43-83 of the Report.
 58

seek and occupy positions of importance in

political and labor organizations. 22Congress was
not barred by the Constitution from believing that
indifference to such experience would be an
exercise not of freedom but of irresponsibility.
On the other hand is the interest in free speech.
The right to exert all governmental powers in aid
of maintaining our institutions and resisting their
physical overthrow does not include intolerance of
opinions and speech that cannot do harm although
opposed and perhaps alien to dominant, traditional
opinion. The treatment of its [341 U.S. 494,
549] minorities, especially their legal position, is
among the most searching tests of the level of
civilization attained by a society. It is better for
those who have almost unlimited power of
government in their hands to err on the side of
freedom. We have enjoyed so much freedom for so
long that we are perhaps in danger of forgetting
how much blood it cost to establish the Bill of
Rights.
Of course no government can recognize a
"right" of revolution, or a "right" to incite
revolution if the incitement has no other purpose
or effect. But speech is seldom restricted to a
single purpose, and its effects may be manifold. A
public interest is not wanting in granting freedom
to speak their minds even to those who advocate
the overthrow of the Government by force. For, as
the evidence in this case abundantly illustrates,
coupled with such advocacy is criticism of defects
21 The Communist background of Dr. Klaus Fuchs was brought
out in the proceedings against him. See The [London] Times, Mar.
2, 1950, p. 2, col. 6.

22 See American Communications Assn. v. Douds, 339 U.S.

382 . Former Senator Robert M. La Follette, Jr., has
reported his experience with infiltration of Communist
sympathizers into congressional committee staffs. Collier's,
Feb. 8, 1947, p. 22.
 59

in our society. Criticism is the spur to reform; and

Burke's admonition that a healthy society must
reform in order to conserve has not lost its force.
Astute observers have remarked that one of the
characteristics of the American Republic is
indifference to fundamental criticism. Bryce, The
American Commonwealth, c. 84. It is a
commonplace that there may be a grain of truth in
the most uncouth doctrine, however false and
repellent the balance may be. Suppressing
advocates of overthrow inevitably will also silence
critics who do not advocate overthrow but fear
that their criticism may be so construed. No
matter how clear we may be that the defendants
now before us are preparing to overthrow our
Government at the propitious moment, it is self-
delusion to think that we can punish them for their
advocacy without adding to the risks run by loyal
citizens who honestly believe in some of the
reforms these defendants advance. It is a sobering
fact that in sustaining the convictions before us we
can hardly escape restriction on the interchange of
ideas. [341 U.S. 494, 550]
We must not overlook the value of that
interchange. Freedom of expression is the well-
spring of our civilization - the civilization we seek
to maintain and further by recognizing the right of
Congress to put some limitation upon expression.
Such are the paradoxes of life. For social
development of trial and error, the fullest possible
opportunity for the free play of the human mind is
an indispensable prerequisite. The history of
civilization is in considerable measure the
displacement of error which once held sway as
official truth by beliefs which in turn have yielded
to other truths. Therefore the liberty of man to
search for truth ought not to be fettered, no matter
what orthodoxies he may challenge. Liberty of
thought soon shrivels without freedom of
expression. Nor can truth be pursued in an
 60

atmosphere hostile to the endeavor or under

dangers which are hazarded only by heroes.
"The interest, which [the First Amendment]
guards, and which gives it its importance,
presupposes that there are no orthodoxies -
religious, political, economic, or scientific - which
are immune from debate and dispute. Back of that
is the assumption - itself an orthodoxy, and the one
permissible exception - that truth will be most likely
to emerge, if no limitations are imposed upon
utterances that can with any plausibility be
regarded as efforts to present grounds for
accepting or rejecting propositions whose truth the
utterer asserts, or denies." International
Brotherhood of Electrical Workers v. Labor Board,
181 F.2d 34, 40.

In the last analysis it is on the validity of this faith

that our national security is staked.
It is not for us to decide how we would adjust
the clash of interests which this case presents
were the primary responsibility for reconciling it
ours. Congress has determined that the danger
created by advocacy of overthrow justifies the
ensuing restriction on freedom of speech. The
determination was made after due deliberation,
and[341 U.S. 494, 551] the seriousness of the
 61

congressional purpose is attested by the volume of

legislation passed to effectuate the same ends. 23
Can we then say that the judgment Congress
exercised was denied it by the Constitution? Can
we establish a constitutional doctrine which
forbids the elected representatives of the people to
make this choice? Can we hold that the First
Amendment deprives Congress of what it deemed
necessary for the Government's protection?
To make validity of legislation depend on
judicial reading of events still in the womb of time
- a forecast, that is, of the outcome of forces at
best appreciated only with knowledge of the
topmost secrets of nations - is to charge the
judiciary with duties beyond its equipment. We do
not expect courts to pronounce historic verdicts on
bygone events. Even historians have conflicting
views to this day on the origins and conduct of the
French Revolution, or, for that matter, varying
interpretations of "the glorious Revolution" of
1688. It is as absurd to be confident that we can
measure the present clash of forces and [341 U.S.
494, 552] their outcome as to ask us to read
history still enveloped in clouds of controversy.

23 Immigration laws require, for instance, exclusion and

deportation of aliens who advocate the overthrow of the
Government by force and violence, and declare ineligible for
naturalization aliens who are members of organizations so
advocating. Act of Feb. 5, 1917, 19, 39 Stat. 889, 8 U.S.C. 155; Act
of Oct. 16, 1918, 40 Stat. 1012, 8 U.S.C. 137; Act of Oct. 14, 1940,
305, 54 Stat. 1141, 8 U.S.C. 705. The Hatch Act prohibits
employment by any Government agency of members of
organizations advocating overthrow of "our constitutional form of
government." Act of Aug. 2, 1939, 9A, 53 Stat. 1148, 5 U.S.C.
(Supp. III) 118j. The Voorhis Act of Oct. 17, 1940, was passed to
require registration of organizations subject to foreign control
which engage in political activity. 54 Stat. 1201, 18 U.S.C. 2386.
The Taft-Hartley Act contains a section designed to exclude
Communists from positions of leadership in labor organizations.
Act of June 23, 1947, 9 (h), 61 Stat. 146, 29 U.S.C. (Supp. III) 159
(h). And, most recently, the McCarran Act requires registration of
"Communist-action" and "Communist-front" organizations. Act of
Sept. 23, 1950, 7, 64 Stat. 987, 993.
 62

In the light of their experience, the Framers of

the Constitution chose to keep the judiciary
dissociated from direct participation in the
legislative process. In asserting the power to pass
on the constitutionality of legislation, Marshall and
his Court expressed the purposes of the Founders.
See Charles A. Beard, The Supreme Court and the
Constitution. But the extent to which the exercise
of this power would interpenetrate matters of
policy could hardly have been foreseen by the most
prescient. The distinction which the Founders
drew between the Court's duty to pass on the
power of Congress and its complementary duty not
to enter directly the domain of policy is
fundamental. But in its actual operation it is rather
subtle, certainly to the common understanding.
Our duty to abstain from confounding policy with
constitutionality demands perceptive humility as
well as self-restraint in not declaring
unconstitutional what in a judge's private
judgment is deemed unwise and even dangerous.
Even when moving strictly within the limits of
constitutional adjudication, judges are concerned
with issues that may be said to involve vital
finalities. The too easy transition from disapproval
of what is undesirable to condemnation as
unconstitutional, has led some of the wisest judges
to question the wisdom of our scheme in lodging
such authority in courts. But it is relevant to
remind that in sustaining the power of Congress in
a case like this nothing irrevocable is done. The
democratic process at all events is not impaired or
restricted. Power and responsibility remain with
the people and immediately with their
representatives. All the Court says is that
Congress was not forbidden by the Constitution to
pass this enactment and that a prosecution under
it may be brought against a conspiracy such as the
one before us. [341 U.S. 494, 553]
 63

IV.
The wisdom of the assumptions underlying the
legislation and prosecution is another matter. In
finding that Congress has acted within its power, a
judge does not remotely imply that he favors the
implications that lie beneath the legal issues.
Considerations there enter which go beyond the
criteria that are binding upon judges within the
narrow confines of their legitimate authority. The
legislation we are here considering is but a
truncated aspect of a deeper issue. For me it has
been most illuminatingly expressed by one in
whom responsibility and experience have fructified
native insight, the Director-General of the British
Broadcasting Corporation:
"We have to face up to the fact that there are
powerful forces in the world today misusing the
privileges of liberty in order to destroy her. The
question must be asked, however, whether
suppression of information or opinion is the true
defense. We may have come a long way from Mill's
famous dictum that:
"`If all mankind minus one were of one opinion,
and only one person were of the contrary opinion,
mankind would be no more justified in silencing that
one person, than he, if he had the power, would be
justified in silencing mankind,'

but Mill's reminders from history as to what has

happened when suppression was most virulently
exercised ought to warn us that no debate is ever
permanently won by shutting one's ears or by even
the most Draconian policy of silencing opponents.
The debate must be won. And it must be won with
full information. Where there are lies, they must be
shown for what they are. Where there are errors,
they must be refuted. It would be a major defeat if
the enemies of democracy forced us to abandon our
faith in the power of informed discussion and so
brought us down [341 U.S. 494, 554] to their own
level. Mankind is so constituted, moreover, that if,
where expression and discussion are concerned,
 64

the enemies of liberty are met with a denial of

liberty, many men of goodwill will come to suspect
there is something in the proscribed doctrine after
all. Erroneous doctrines thrive on being expunged.
They die if exposed." Sir William Haley, What
Standards for Broadcasting? Measure, Vol. I, No. 3,
Summer 1950, pp. 211-212.
In the context of this deeper struggle, another
voice has indicated the limitations of what we
decide today. No one is better equipped than
George F. Kennan to speak on the meaning of the
menace of Communism and the spirit in which we
should meet it.
"If our handling of the problem of Communist
influence in our midst is not carefully moderated - if
we permit it, that is, to become an emotional
preoccupation and to blind us to the more
important positive tasks before us - we can do a
damage to our national purpose beyond comparison
greater than anything that threatens us today from
the Communist side. The American Communist
party is today, by and large, an external danger. It
represents a tiny minority in our country; it has no
real contact with the feelings of the mass of our
people; and its position as the agency of a hostile
foreign power is clearly recognized by the
overwhelming mass of our citizens.
"But the subjective emotional stresses and
temptations to which we are exposed in our attempt
to deal with this domestic problem are not an
external danger: they represent a danger within
ourselves - a danger that something may occur in
our own minds and souls which will make us no
longer like the persons by whose efforts this
republic was founded and held together, but rather
like the representatives [341 U.S. 494, 555] of that
very power we are trying to combat: intolerant,
secretive, suspicious, cruel, and terrified of internal
dissension because we have lost our own belief in
ourselves and in the power of our ideals. The worst
thing that our Communists could do to us, and the
thing we have most to fear from their activities, is
that we should become like them.
 65

"That our country is beset with external dangers

I readily concede. But these dangers, at their worst,
are ones of physical destruction, of the disruption
of our world security, of expense and inconvenience
and sacrifice. These are serious, and sometimes
terrible things, but they are all things that we can
take and still remain Americans.
"The internal danger is of a different order.
America is not just territory and people. There is
lots of territory elsewhere, and there are lots of
people; but it does not add up to America. America
is something in our minds and our habits of outlook
which causes us to believe in certain things and to
behave in certain ways, and by which, in its totality,
we hold ourselves distinguished from others. If that
once goes there will be no America to defend. And
that can go too easily if we yield to the primitive
human instinct to escape from our frustrations into
the realms of mass emotion and hatred and to find
scapegoats for our difficulties in individual fellow-
citizens who are, or have at one time been,
disoriented or confused." George F. Kennan, Where
Do You Stand on Communism? New York Times
Magazine, May 27, 1951, pp. 7, 53, 55.

Civil liberties draw at best only limited strength

from legal guaranties. Preoccupation by our people
with the constitutionality, instead of with the
wisdom, of legislation or of executive action is
preoccupation with a false value. Even those who
would most freely use the judicial [341 U.S. 494,
556] brake on the democratic process by
invalidating legislation that goes deeply against
their grain, acknowledge, at least by paying lip
service, that constitutionality does not exact a
sense of proportion or the sanity of humor or an
absence of fear. Focusing attention on
constitutionality tends to make constitutionality
synonymous with wisdom. When legislation
touches freedom of thought and freedom of
speech, such a tendency is a formidable enemy of
the free spirit. Much that should be rejected as
 66

illiberal, because repressive and envenoming, may

well be not unconstitutional. The ultimate reliance
for the deepest needs of civilization must be found
outside their vindication in courts of law; apart
from all else, judges, howsoever they may
conscientiously seek to discipline themselves
against it, unconsciously are too apt to be moved
by the deep undercurrents of public feeling. A
persistent, positive translation of the liberating
faith into the feelings and thoughts and actions of
men and women is the real protection against
attempts to strait-jacket the human mind. Such
temptations will have their way, if fear and hatred
are not exorcized. The mark of a truly civilized
man is confidence in the strength and security
derived from the inquiring mind. We may be
grateful for such honest comforts as it supports,
but we must be unafraid of its incertitudes.
Without open minds there can be no open society.
And if society be not open the spirit of man is
mutilated and becomes enslaved.

APPENDIX TO OPINION OF MR. JUSTICE FRANKFURTER.

Opinions responsible for the view that speech

could not constitutionally be restricted unless
there would result from it an imminent - i. e., close
at hand - substantive evil.
1. Thornhill v. Alabama, 310 U.S. 88, 104 -105
(State statute prohibiting picketing held invalid): ".
. . Every[341 U.S. 494, 557] expression of opinion
on matters that are important has the potentiality
of inducing action in the interests of one rather
than another group in society. But the group in
power at any moment may not impose penal
sanctions on peaceful and truthful discussion of
matters of public interest merely on a showing that
others may thereby be persuaded to take action
inconsistent with its interests. Abridgment of the
liberty of such discussion can be justified only
 67

where the clear danger of substantive evils arises

under circumstances affording no opportunity to
test the merits of ideas by competition for
acceptance in the market of public opinion. . . .
". . . [N]o clear and present danger of
destruction of life or property, or invasion of the
right of privacy, or breach of the peace can be
thought to be inherent in the activities of every
person who approaches the premises of an
employer and publicizes the facts of a labor
dispute involving the latter."
2. Bridges v. California, 314 U.S. 252, 262 -263
(convictions for contempt of court reversed): ". . .
[T]he `clear and present danger' language of the
Schenck case has afforded practical guidance in a
great variety of cases in which the scope of
constitutional protections of freedom of expression
was in issue. It has been utilized by either a
majority or minority of this Court in passing upon
the constitutionality of convictions under
espionage acts, Schenck v. United States, supra
[249 U.S. 47]; Abrams v. United States, 250 U.S.
616 ; under a criminal syndicalism act, Whitney v.
California, supra [274 U.S. 357]; under an `anti-
insurrection' act, Herndon v. Lowry, supra [ 301
U.S. 242 ]; and for breach of the peace at common
law, Cantwell v. Connecticut, supra [ 310 U.S.
296 ]. And very recently we have also suggested
that `clear and present danger' is an appropriate
guide in determining the constitutionality of
restrictions upon expression where the substantive
evil sought to be prevented [341 U.S. 494,
558] by the restriction is `destruction of life or
property, or invasion of the right of privacy.'
Thornhill v. Alabama, 310 U.S. 88, 105 .
.....
"What finally emerges from the `clear and
present danger' cases is a working principle that
the substantive evil must be extremely serious and
the degree of imminence extremely high before
 68

utterances can be punished. Those cases do not

purport to mark the furthermost constitutional
boundaries of protected expression, nor do we
here. They do no more than recognize a minimum
compulsion of the Bill of Rights. For the First
Amendment does not speak equivocally. It
prohibits any law `abridging the freedom of
speech, or of the press.' It must be taken as a
command of the broadest scope that explicit
language, read in the context of a liberty-loving
society, will allow."
3. West Virginia Board of Education v.
Barnette, 319 U.S. 624, 639 (flag-salute
requirement for school children held invalid): "In
weighing arguments of the parties it is important
to distinguish between the due process clause of
the Fourteenth Amendment as an instrument for
transmitting the principles of the First Amendment
and those cases in which it is applied for its own
sake. The test of legislation which collides with the
Fourteenth Amendment, because it also collides
with the principles of the First, is much more
definite than the test when only the Fourteenth is
involved. Much of the vagueness of the due
process clause disappears when the specific
prohibitions of the First become its standard. The
right of a State to regulate, for example, a public
utility may well include, so far as the due process
test is concerned, power to impose all of the
restrictions which a legislature may have a
`rational basis' for adopting. But freedoms of
speech and of press, of assembly, and of worship
may not be infringed on such slender grounds.
They are susceptible [341 U.S. 494, 559] of
restriction only to prevent grave and immediate
danger to interests which the State may lawfully
protect. It is important to note that while it is the
Fourteenth Amendment which bears directly upon
the State it is the more specific limiting principles
 69

of the First Amendment that finally govern this

case."
4. Thomas v. Collins, 323 U.S. 516, 529 -530
(State statute requiring registration of labor
organizers held invalid as applied): "The case
confronts us again with the duty our system places
on this Court to say where the individual's freedom
ends and the State's power begins. Choice on that
border, now as always delicate, is perhaps more so
where the usual presumption supporting
legislation is balanced by the preferred place given
in our scheme to the great, the indispensable
democratic freedoms secured by the First
Amendment. Cf. Schneider v. State, 308 U.S. 147 ;
Cantwell v. Connecticut, 310 U.S. 296 ; Prince v.
Massachusetts, 321 U.S. 158 . That priority gives
these liberties a sanctity and a sanction not
permitting dubious intrusions. And it is the
character of the right, not of the limitation, which
determines what standard governs the choice.
Compare United States v. Carolene Products
Co., 304 U.S. 144, 152 -153.
"For these reasons any attempt to restrict those
liberties must be justified by clear public interest,
threatened not doubtfully or remotely, but by clear
and present danger. The rational connection
between the remedy provided and the evil to be
curbed, which in other contexts might support
legislation against attack on due process grounds,
will not suffice. These rights rest on firmer
foundation. Accordingly, whatever occasion would
restrain orderly discussion and persuasion, at
appropriate time and place, must have clear
support in public danger, actual or impending.
Only the gravest abuses, endangering paramount
interests, give occasion for permissible
limitation." [341 U.S. 494, 560]
5. Craig v. Harney, 331 U.S. 367,
376 (conviction for contempt of court reversed):
"The fires which [the language] kindles must
 70

constitute an imminent, not merely a likely, threat

to the administration of justice. The danger must
not be remote or even probable; it must
immediately imperil."
6. Giboney v. Empire Storage Co., 336 U.S. 490,
503 (injunction against picketing upheld): ". . .
There was clear danger, imminent and immediate,
that unless restrained, appellants would succeed in
making [the State's policy against restraints of
trade] a dead letter insofar as purchases by
nonunion men were concerned. . . ."
7. Terminiello v. Chicago, 337 U.S. 1, 4 -5
(conviction for disorderly conduct reversed):
"Speech is often provocative and challenging. It
may strike at prejudices and preconceptions and
have profound unsettling effects as it presses for
acceptance of an idea. That is why freedom of
speech, though not absolute, Chaplinsky v. New
Hampshire, supra, [ 315 U.S. 568 ] 571-572, is
nevertheless protected against censorship or
punishment, unless shown likely to produce a clear
and present danger of a serious substantive evil
that rises far above public inconvenience,
annoyance, or unrest. See Bridges v.
California, 314 U.S. 252, 262 ; Craig v. Harney, 331
U.S. 367, 373 . There is no room under our
Constitution for a more restrictive view. For the
alternative would lead to standardization of ideas
either by legislatures, courts, or dominant political
or community groups."
8. American Communications Assn. v.
Douds, 339 U.S. 382, 396 , 412 ("Non-Communist
affidavit" provision of Taft-Hartley Act upheld):
"Speech may be fought with speech. Falsehoods
and fallacies must be exposed, not suppressed,
unless there is not sufficient time to avert the evil
consequences of noxious doctrine by argument and
education. That is the command of the First
Amendment." And again, "[The First] Amendment
requires[341 U.S. 494, 561] that one be permitted
 71

to believe what he will. It requires that one be

permitted to advocate what he will unless there is
a clear and present danger that a substantial
public evil will result therefrom."

MR. JUSTICE JACKSON, concurring.

This prosecution is the latest of never-ending,
because never successful, quests for some legal
formula that will secure an existing order against
revolutionary radicalism. It requires us to
reappraise, in the light of our own times and
conditions, constitutional doctrines devised under
other circumstances to strike a balance between
authority and liberty.
Activity here charged to be criminal is
conspiracy - that defendants conspired to teach
and advocate, and to organize the Communist
Party to teach and advocate, overthrow and
destruction of the Government by force and
violence. There is no charge of actual violence or
attempt at overthrow. 24
The principal reliance of the defense in this
Court is that the conviction cannot stand under the
Constitution because the conspiracy of these
defendants presents no "clear and present danger"

24 The Government's own summary of its charge is: "The

indictment charged that from April 1, 1945, to the date of the
indictment petitioners unlawfully, wilfully, and knowingly
conspired with each other and with other persons unknown to the
grand jury (1) to organize as the Communist Party of the United
States of America a society, group and assembly of persons who
teach and advocate the overthrow and destruction of the
Government of the United States by force and violence, and (2)
knowingly and wilfully to advocate and teach the duty and
necessity of overthrowing and destroying the Government of the
United States by force and violence. The indictment alleged that
Section 2 of the Smith Act proscribes these acts and that the
conspiracy to take such action is a violation of Section 3 of the act
(18 U.S.C. 10, 11 (1946 ed.))."
 72

of imminent or foreseeable overthrow. [341 U.S.

494, 562]

I.
The statute before us repeats a pattern,
originally devised to combat the wave of
anarchistic terrorism that plagued this country
about the turn of the century, 25which lags at least
two generations behind Communist Party
techniques.
Anarchism taught a philosophy of extreme
individualism and hostility to government and
property. Its avowed aim was a more just order, to
be achieved by violent destruction of all
government. 26 Anarchism's sporadic and
uncoordinated acts of terror were not integrated
with an effective revolutionary machine, but the
Chicago Haymarket riots of 1886, 27 attempted

25 The Government says this Act before us was modeled after the
New York Act of 1909, sustained by this Court in Gitlow v. New
York, 268 U.S. 652 . That, in turn, as the Court pointed out,
followed an earlier New York Act of 1902. Shortly after the
assassination of President McKinley by an anarchist, Congress
adopted the same concepts in the Immigration Act of March 3,
1903. 32 Stat. 1213, 2. Some germs of the same concept can be
found in some reconstruction legislation, such as the Enforcement
Act of 1871, 17 Stat. 13. The Espionage Act of 1917, 40 Stat. 217,
tit. 1, 3, which gave rise to a series of civil-rights decisions,
applied only during war and defined as criminal "false statements
with intent" to interfere with our war effort or cause
insubordination in the armed forces or obstruct recruiting.
However, a wave of "criminal syndicalism statutes" were enacted
by the States. They were generally upheld, Whitney v.
California, 274 U.S. 357 , and prosecutions under them were
active from 1919 to 1924. In California alone, 531 indictments
were returned and 164 persons convicted. 4 Encyc. Soc. Sci. 582,
583. The Smith Act followed closely the terminology designed to
incriminate the methods of terroristic anarchism.

26 Elementary texts amplify the theory and practice of these

movements which must be greatly oversimplified in this opinion.
See Anarchism, 2 Encyc. Soc. Sci. 46; Nihilism, 11 Encyc. Soc.
Sci. 377.

27 Spies v. Illinois, 122 Ill. 1, 12 N. E. 865, 17 N. E. 898.

 73

murder of the industrialist Frick, attacks on state

officials, and [341 U.S. 494, 563] assassination of
President McKinley in 1901, were fruits of its
preaching.
However, extreme individualism was not
conducive to cohesive and disciplined
organization. Anarchism fell into disfavor among
incendiary radicals, many of whom shifted their
allegiance to the rising Communist Party.
Meanwhile, in Europe anarchism had been
displaced by Bolshevism as the doctrine and
strategy of social and political upheaval. Led by
intellectuals hardened by revolutionary
experience, it was a more sophisticated, dynamic
and realistic movement. Establishing a base in the
Soviet Union, it founded an aggressive
international Communist apparatus which has
modeled and directed a revolutionary movement
able only to harass our own country. But it has
seized control of a dozen other countries.
Communism, the antithesis of anarchism, 28
appears today as a closed system of thought
representing Stalin's[341 U.S. 494, 564] version
of Lenin's version of Marxism. As an ideology, it is
not one of spontaneous protest arising from
American working-class experience. It is a

28 Prof. Beard demonstrates this antithesis by

quoting the Russian anarchist leader Bakunin, as
follows:"`Marx is an authoritarian and centralizing
communist. He wishes what we wish: the complete
triumph of economic and social equality, however, within
the state and through the power of the state, through
the dictatorship of a very strong and, so to speak,
despotic provisional government, that is, by the
negation of liberty. His economic ideal is the state as the
sole owner of land and capital, tilling the soil by means
of agricultural associations, under the management of
its engineers, and directing through the agency of
capital all industrial and commercial associations.
 74

complicated system of assumptions, based on

European history and conditions, shrouded in an
obscure and ambiguous vocabulary, which allures
our ultrasophisticated intelligentsia more than our
hard-headed working people. From time to time it
champions all manner of causes and grievances
and makes alliances that may add to its foothold in
government or embarrass the authorities.
The Communist Party, nevertheless, does not
seek its strength primarily in numbers. Its aim is a
relatively small party whose strength is in
selected, dedicated, indoctrinated, and rigidly
disciplined members. From established policy it
tolerates no deviation and no debate. It seeks
members that are, or may be, secreted in strategic
posts in transportation, communications, industry,
government, and especially in labor unions where
it can compel employers to accept and retain its
members. 29 It also seeks to infiltrate and control
organizations of professional and other groups.
Through these placements in positions of power it
seeks a leverage over society that will make up in
power of coercion what it lacks in power of
persuasion.

"`We demand the same triumph of economic and

social equality through the abolition of the state and
everything called juridical right, which is according to
our view the permanent negation of human right. We
wish the reconstruction of society and the establishment
of the unity of mankind not from above downward
through authority, through socialistic officials, engineers
and public technicians, but from below upward through
the voluntary federation of labor associations of all kinds
emancipated entirely from the yoke of the state.'" Beard,
Individualism and Capitalism, 1 Encyc. Soc. Sci. 145,
158.

29 For methods and objects of infiltration of labor unions, see

American Communications Assn. v. Douds, 339 U.S. 382, 422 .
 75

The Communists have no scruples against

sabotage, terrorism, assassination, or mob
disorder; but violence is not with them, as with the
anarchists, an end in itself. The Communist Party
advocates force only when prudent and profitable.
Their strategy of stealth precludes premature or
uncoordinated outbursts of violence, except, of
course, when the blame will be placed on
shoulders other than their own. They resort to
violence as to truth, not [341 U.S. 494, 565] as a
principle but as an expedient. Force or violence, as
they would resort to it, may never be necessary,
because infiltration and deception may be enough.
Force would be utilized by the Communist Party
not to destroy government but for its capture. The
Communist recognizes that an established
government in control of modern technology
cannot be overthrown by force until it is about
ready to fall of its own weight. Concerted uprising,
therefore, is to await that contingency and
revolution is seen, not as a sudden episode, but as
the consummation of a long process.
The United States, fortunately, has experienced
Communism only in its preparatory stages and for
its pattern of final action must look abroad. Russia,
of course, was the pilot Communist revolution,
which to the Marxist confirms the Party's
assumptions and points its destiny. 30 [341 U.S.
30 The Czar's government, in February 1917, literally gave up,
almost without violence, to the Provisional Government, because
it was ready to fall apart from its corruption, ineptitude,
superstition, oppression and defeat. The revolutionary parties had
little to do with this and regarded it as a bourgeoisie triumph.
Lenin was an exile in Switzerland, Trotsky in the United States,
and Stalin was in Siberia. The Provisional Government attempted
to continue the war against Germany, but it, too, was unable to
solve internal problems and its Galician campaign failed with
heavy losses. By October, its prestige and influence sank so low
that it could not continue. Meanwhile, Lenin and Trotsky had
returned and consolidated the Bolshevik position around the
Soviets, or trade unions. They simply took over power in an almost
bloodless revolution between October 25 and November 7, 1917.
That Lenin and Trotsky represented only a minority was
demonstrated in November elections, in which the Bolsheviks
secured less than a quarter of the seats. Then began the series of
 76

494, 566] But Communist technique in the

overturn of a free government was disclosed by
the coup d'etat in which they seized power in
Czechoslovakia. 31 There the Communist Party
during its preparatory stage claimed and received
protection for its freedoms of speech, press, and
assembly. Pretending to be but another political
party, it eventually was conceded participation in
government, where it entrenched reliable
members chiefly in control of police and
information services. When the government faced
a foreign and domestic crisis, the Communist Party
had established a leverage strong enough to
threaten civil war. In a period of confusion the
Communist plan unfolded and the underground
organization came to the surface throughout the
country in the form chiefly of labor "action
committees." Communist officers of the unions
took over transportation and allowed only persons
with party permits to travel. Communist printers
took over the newspapers and radio and put out
only party-approved versions of events. Possession
was taken of telegraph and telephone systems and
communications were cut off wherever directed by
party heads. Communist unions took over the
factories, and in the cities a partisan distribution
of food was managed by the Communist
opportunistic movements to entrench themselves in power. Faced
by invasion of the allies, by counterrevolution, and the attempted
assassination of Lenin, terrorism was resorted to on a large scale
and all the devices of the Czar's police state were reestablished.
See 1 Carr, The Bolshevik Revolution 1917-1923, 99-110, and
Moore, Soviet Politics - The Dilemma of Power, 117-139.

31 Duchacek, The Strategy of Communist Infiltration:

Czechoslovakia, 1944-1948, World Politics, Vol. II, No. 3 (April
1950), 345-372; and The February Coup in Czechoslovakia, id.,
July 1950, 511-532; see also Kertesz, The Methods of Communist
Conquest: Hungary, 1944-1947, id., October 1950, 20-54;
Lasswell, The Strategy of Soviet Propaganda, 24 Acad. Pol. Sci.
Proc. 214, 221. See also Friedman, The Break-up of Czech
Democracy.
 77

organization. A virtually bloodless abdication by

the elected government admitted the Communists
to power, whereupon they instituted a reign of
oppression and terror, and ruthlessly denied to all
others the freedoms which had sheltered their
conspiracy. [341 U.S. 494, 567]

II.
The foregoing is enough to indicate that, either
by accident or design, the Communist stratagem
outwits the anti-anarchist pattern of statute aimed
against "overthrow by force and violence" if
qualified by the doctrine that only "clear and
present danger" of accomplishing that result will
sustain the prosecution.
The "clear and present danger" test was an
innovation by Mr. Justice Holmes in the Schenck
case, 32 reiterated and refined by him and Mr.
Justice Brandeis in later cases, 33 all arising before
the era of World War II revealed the subtlety and
32 Schenck v. United States, 249 U.S. 47 . This doctrine has
been attacked as one which "annuls the most significant
purpose of the First Amendment. It destroys the intellectual
basis of our plan of self-government." Meiklejohn, Free
Speech And Its Relation to Self-Government, 29. It has been
praised: "The concept of freedom of speech received for the
first time an authoritative judicial interpretation in accord
with the purpose of the framers of the Constitution."
Chafee, Free Speech in the United States, 82. In either
event, it is the only original judicial thought on the subject,
all later cases having made only extensions of its
application. All agree that it means something very
important, but no two seem to agree on what it is. See
concurring opinion, MR. JUSTICE FRANKFURTER, Kovacs
v. Cooper, 336 U.S. 77, 89 .

33 Gitlow v. New York, 268 U.S. 652 ; Whitney v. California, 274

U.S. 357 . Holmes' comment on the former, in his letters to Sir
Frederick Pollock of June 2 and 18, 1925, as "a case in which
conscience and judgment are a little in doubt," and description of
his dissent as one "in favor of the rights of an anarchist (so-called)
to talk drool in favor of the proletarian dictatorship" show the
tentative nature of his test, even as applied to a trivial case.
Holmes-Pollock Letters (Howe ed. 1946).
 78

efficacy of modernized revolutionary techniques

used by totalitarian parties. In those cases, they
were faced with convictions under so-called
criminal syndicalism statutes aimed at anarchists
but which, loosely construed, had been applied to
punish socialism, pacifism, and left-wing
ideologies, the charges often resting on
farfetched [341 U.S. 494, 568] inferences which,
if true, would establish only technical or trivial
violations. They proposed "clear and present
danger" as a test for the sufficiency of evidence in
particular cases.
I would save it, unmodified, for application as a
"rule of reason" 34 in the kind of case for which it
was devised. When the issue is criminality of a hot-
headed speech on a street corner, or circulation of
a few incendiary pamphlets, or parading by some
zealots behind a red flag, or refusal of a handful of
school children to salute our flag, it is not beyond
the capacity of the judicial process to gather,
comprehend, and weigh the necessary materials
for decision whether it is a clear and present
danger of substantive evil or a harmless letting off
of steam. It is not a prophecy, for the danger in
such cases has matured by the time of trial or it
was never present. The test applies and has
meaning where a conviction is sought to be based
on a speech or writing which does not directly or
explicitly advocate a crime but to which such
tendency is sought to be attributed by construction
or by implication from external circumstances. The
formula in such cases favors freedoms that are
vital to our society, and, even if sometimes applied
too generously, the consequences cannot be grave.
But its recent expansion has extended, in
particular to Communists, unprecedented

34 So characterized by Mr. Justice Brandeis in Schaefer v. United

States, 251 U.S. 466, 482 .
 79

immunities. 35 Unless we are to hold our

Government captive in a judge-made verbal trap,
we must approach the problem of a well-organized,
nation-wide conspiracy, such as I have [341 U.S.
494, 569] described, as realistically as our
predecessors faced the trivialities that were being
prosecuted until they were checked with a rule of
reason.
I think reason is lacking for applying that test
to this case. [341 U.S. 494, 570]
If we must decide that this Act and its
application are constitutional only if we are
convinced that petitioner's conduct creates a
"clear and present danger" of violent overthrow,
we must appraise imponderables, including
international and national phenomena which baffle
the best informed foreign offices and our most
experienced politicians. We would have to foresee
and predict the effectiveness of Communist
propaganda, opportunities for infiltration, whether,
and when, a time will come that they consider
propitious for action, and whether and how fast
our existing government will deteriorate. And we
would have to speculate as to whether an
approaching Communist coup would not be
anticipated by a nationalistic fascist movement. No
doctrine can be sound whose application requires
us to make a prophecy of that sort in the guise of a
legal decision. The judicial process simply is not
adequate to a trial of such far-flung issues. The
answers given would reflect our own political
predilections and nothing more.
The authors of the clear and present danger
test never applied it to a case like this, nor would I.
If applied as it is proposed here, it means that the
Communist plotting is protected during its period
of incubation; its preliminary stages of
organization and preparation are immune from the
law; the Government can move only after imminent
 80

action is manifest, when it would, of course, be too

late.

III.
The highest degree of constitutional protection
is due to the individual acting without conspiracy.
But even an individual cannot claim that the
Constitution protects him in advocating or
teaching overthrow of government by force or
35 Recent cases have pushed the "clear and present
danger" doctrine to greater extremes. While Mr. Justice
Brandeis said only that the evil to be feared must be
"imminent" and "relatively serious," Whitney v.
California, 274 U.S. 357, 376 and 377, more recently it was
required "that the substantive evil must be extremely
serious and the [341 U.S. 494, 569] degree of imminence
extremely high before utterances can be punished." Bridges
v. California, 314 U.S. 252, 263 . (Italics
supplied.)Schneiderman v. United States, 320 U.S. 118 ,
overruled earlier holdings that the courts could take judicial
notice that the Communist Party does advocate overthrow of
the Government by force and violence. This Court reviewed
much of the basic Communist literature that is before us
now, and held that it was within "the area of allowable
thought," id., at 139, that it does not show lack of
attachment to the Constitution, and that success of the
Communist Party would not necessarily mean the end of
representative government. The Court declared further that
"A tenable conclusion from the foregoing is that the Party in
1927 desired to achieve its purpose by peaceful and
democratic means, and as a theoretical matter justified the
use of force and violence only as a method of preventing an
attempted forcible counter-overthrow once the Party had
obtained control in a peaceful manner, or as a method of
last resort to enforce the majority will if at some indefinite
future time because of peculiar circumstances constitutional
or peaceful channels were no longer open." Id., at 157.
Moreover, the Court considered that this "mere doctrinal
justification or prediction of the use of force under
hypothetical conditions at some indefinite future time -
prediction that is not calculated or intended to be presently
acted upon, . . . ." ibid., was within the realm of free speech.
A dissent by Mr. Chief Justice Stone, for himself and Justices
Roberts and Frankfurter, challenged these naive
conclusions, as they did again in Bridges v. Wixon,326 U.S.
 81

violence. I should suppose no one would doubt that

Congress has power to make such attempted [341
U.S. 494, 571] overthrow a crime. But the
contention is that one has the constitutional right
to work up a public desire and will to do what it is
a crime to attempt. I think direct incitement by
speech or writing can be made a crime, and I think
there can be a conviction without also proving that
the odds favored its success by 99 to 1, or some
other extremely high ratio.
The names of Mr. Justice Holmes and Mr.
Justice Brandeis cannot be associated with such a
doctrine of governmental disability. After the
Schenck case, in which they set forth the clear and
present danger test, they joined in these words of
Mr. Justice Holmes, spoken for a unanimous Court:
". . . [T]he First Amendment while prohibiting
legislation against free speech as such cannot have
been, and obviously was not, intended to give
immunity for every possible use of language.
Robertson v. Baldwin, 165 U.S. 275, 281 . We
venture to believe that neither Hamilton nor
Madison, nor any other competent person then or
later, ever supposed that to make criminal the
counselling of a murder within the jurisdiction of
Congress would be an unconstitutional interference
with free speech." Frohwerk v. United States, 249
U.S. 204, 206 .

135 , in which the Court again set aside an Attorney

General's deportation order. Here Mr. Justice Murphy,
without whom there would not have been a majority for the
decision, speaking for himself in a concurring opinion,
pronounced the whole deportation statute unconstitutional,
as applied to Communists, under the "clear and present
danger test," because, "Not the slightest evidence was
introduced to show that either Bridges or the Communist
Party seriously and imminently threatens to uproot the
Government by force or violence." 326 U.S. at 165.
 82

The same doctrine was earlier stated in Fox v.

Washington, 236 U.S. 273, 277 , and that case was
recently and with approval cited in Giboney v.
Empire Storage & Ice Co., 336 U.S. 490, 502 .
As aptly stated by Judge Learned Hand in
Masses Publishing Co. v. Patten, 244 F. 535, 540:
"One may not counsel or advise others to violate
the law as it stands. Words are not only the keys of
persuasion, but the triggers of action, and those
which have no purport but to counsel the violation
of law cannot by any latitude of interpretation be a
part of that public opinion which is the final source
of government in a democratic state."[341 U.S.
494, 572]
Of course, it is not always easy to distinguish
teaching or advocacy in the sense of incitement
from teaching or advocacy in the sense of
exposition or explanation. It is a question of fact in
each case.

IV.
What really is under review here is a conviction
of conspiracy, after a trial for conspiracy, on an
indictment charging conspiracy, brought under a
statute outlawing conspiracy. With due respect to
my colleagues, they seem to me to discuss
anything under the sun except the law of
conspiracy. One of the dissenting opinions even
appears to chide me for "invoking the law of
conspiracy." As that is the case before us, it may be
more amazing that its reversal can be proposed
without even considering the law of conspiracy.
The Constitution does not make conspiracy a
civil right. The Court has never before done so and
I think it should not do so now. Conspiracies of
labor unions, trade associations, and news
agencies have been condemned, although
accomplished, evidenced and carried out, like the
conspiracy here, chiefly by letter-writing,
meetings, speeches and organization. Indeed, this
 83

Court seems, particularly in cases where the

conspiracy has economic ends, to be applying its
doctrines with increasing severity. While I consider
criminal conspiracy a dragnet device capable of
perversion into an instrument of injustice in the
hands of a partisan or complacent judiciary, it has
an established place in our system of law, and no
reason appears for applying it only to concerted
action claimed to disturb interstate commerce and
withholding it from those claimed to undermine
our whole Government. 36 [341 U.S. 494, 573]
The basic rationale of the law of conspiracy is
that a conspiracy may be an evil in itself,
independently of any other evil it seeks to
accomplish. Thus, we recently held in Pinkerton v.
United States, 328 U.S. 640, 643 -644, "It has been
long and consistently recognized by the Court that
the commission of the substantive offense and a
conspiracy to commit it are separate and distinct
offenses. The power of Congress to separate the
two and to affix to each a different penalty is well
established. . . . And the plea of double jeopardy is
no defense to a conviction for both offenses. . . ."
So far does this doctrine reach that it is well
settled that Congress may make it a crime to
conspire with others to do what an individual may
lawfully do on his own. This principle is illustrated
in conspiracies that violate the antitrust laws as
sustained and applied by this Court. Although one
may raise the prices of his own products, and
many, acting without concert, may do so, the
moment they conspire to that end they are
punishable. The same principle is applied to
organized labor. Any workman may quit his work
for any reason, but concerted actions to the same
end are in some circumstances forbidden. National

36 These dangers were more fully set out in Krulewitch v. United

States, 336 U.S. 440, 445 .
 84

Labor Relations Act, as amended, 61 Stat. 136, 8

(b), 29 U.S.C. 158 (b).
The reasons underlying the doctrine that
conspiracy may be a substantive evil in itself, apart
from any evil it may threaten, attempt, or
accomplish, are peculiarly appropriate to
conspiratorial Communism.
"The reason for finding criminal liability in case
of a combination to effect an unlawful end or to use
unlawful means, where none would exist, even
though the act contemplated were actually
committed by an individual, is that a combination of
persons to commit a wrong, either as an end or as a
means to an end, is so much more dangerous,
because of its increased power to do wrong,
because it is more difficult [341 U.S. 494, 574] to
guard against and prevent the evil designs of a
group of persons than of a single person, and
because of the terror which fear of such a
combination tends to create in the minds of
people." 37

There is lamentation in the dissents about the

injustice of conviction in the absence of some overt
act. Of course, there has been no general uprising
against the Government, but the record is replete
with acts to carry out the conspiracy alleged, acts
such as always are held sufficient to consummate
the crime where the statute requires an overt act.
But the shorter answer is that no overt act is or
need be required. The Court, in antitrust cases,
early upheld the power of Congress to adopt the
ancient common law that makes conspiracy itself a
crime. Through Mr. Justice Holmes, it said:
"Coming next to the objection that no overt act is
laid, the answer is that the Sherman Act punishes
the conspiracies at which it is aimed on the
37 Miller on Criminal Law, 110. Similar reasons have been
reiterated by this Court. United States v. Rabinowich, 238
U.S. 78, 88 ; Pinkerton v. United States, 328 U.S. 640, 643 -
644.
 85

common law footing - that is to say, it does not

make the doing of any act other than the act of
conspiring a condition of liability." Nash v. United
States, 229 U.S. 373, 378 . Reiterated, United
States v. Socony-Vacuum Oil Co., 310 U.S. 150,
252 . It is not to be supposed that the power of
Congress to protect the Nation's existence is more
limited than its power to protect interstate
commerce.
Also, it is urged that since the conviction is for
conspiracy to teach and advocate, and to organize
the Communist Party to teach and advocate, the
First Amendment is violated, because freedoms of
speech and press protect teaching and advocacy
regardless of what is taught or advocated. I have
never thought that to be the law. [341 U.S. 494,
575]
I do not suggest that Congress could punish
conspiracy to advocate something, the doing of
which it may not punish. Advocacy or exposition of
the doctrine of communal property ownership, or
any political philosophy unassociated with
advocacy of its imposition by force or seizure of
government by unlawful means could not be
reached through conspiracy prosecution. But it is
not forbidden to put down force or violence, it is
not forbidden to punish its teaching or advocacy,
and the end being punishable, there is no doubt of
the power to punish conspiracy for the purpose.
The defense of freedom of speech or press has
often been raised in conspiracy cases, because,
whether committed by Communists, by
businessmen, or by common criminals, it usually
consists of words written or spoken, evidenced by
letters, conversations, speeches or documents.
Communication is the essence of every conspiracy,
for only by it can common purpose and concert of
action be brought about or be proved. However,
when labor unions raised the defense of free
 86

speech against a conspiracy charge, we

unanimously said:
"It rarely has been suggested that the
constitutional freedom for speech and press
extends its immunity to speech or writing used as
an integral part of conduct in violation of a valid
criminal statute. We reject the contention now. . . .
.....
". . . It is true that the agreements and course of
conduct here were as in most instances brought
about through speaking or writing. But it has never
been deemed an abridgment of freedom of speech
or press to make a course of conduct illegal merely
because the conduct was in part initiated,
evidenced, or carried out by means of language,
either spoken, written, or printed. . . . Such an
expansive interpretation [341 U.S. 494, 576] of the
constitutional guaranties of speech and press would
make it practically impossible ever to enforce laws
against agreements in restraint of trade as well as
many other agreements and conspiracies deemed
injurious to society." Giboney v. Empire Storage &
Ice Co., 336 U.S. 490, 498 , 502.

A contention by the press itself, in a conspiracy

case, that it was entitled to the benefits of the
"clear and present danger" test, was curtly
rebuffed by this Court, saying: "Nor is a publisher
who engages in business practices made unlawful
by the Sherman Act entitled to a partial immunity
by reason of the `clear and present danger'
doctrine . . . . Formulated as it was to protect
liberty of thought and of expression, it would
degrade the clear and present danger doctrine to
fashion from it a shield for business publishers
who engage in business practices condemned by
the Sherman Act. . . ." Associated Press v. United
States, 326 U.S. 1, 7 . I should think it at least as
"degrading" to fashion of it a shield for
conspirators whose ultimate purpose is to capture
or overthrow the Government.
 87

In conspiracy cases the Court not only has

dispensed with proof of clear and present danger
but even of power to create a danger: "It long has
been settled, however, that a `conspiracy to
commit a crime is a different offense from the
crime that is the object of the conspiracy.' . . .
Petitioners, for example, might have been
convicted here of a conspiracy to monopolize
without ever having acquired the power to carry
out the object of the conspiracy . . . ." American
Tobacco Co. v. United States, 328 U.S. 781, 789 .
Having held that a conspiracy alone is a crime
and its consummation is another, it would be weird
legal reasoning to hold that Congress could punish
the one only if there was "clear and present
danger" of the second. This [341 U.S. 494,
577] would compel the Government to prove two
crimes in order to convict for one.
When our constitutional provisions were
written, the chief forces recognized as antagonists
in the struggle between authority and liberty were
the Government on the one hand and the
individual citizen on the other. It was thought that
if the state could be kept in its place the individual
could take care of himself.
In more recent times these problems have been
complicated by the intervention between the state
and the citizen of permanently organized, well-
financed, semisecret and highly disciplined
political organizations. Totalitarian groups here
and abroad perfected the technique of creating
private paramilitary organizations to coerce both
the public government and its citizens. These
organizations assert as against our Government all
of the constitutional rights and immunities of
individuals and at the same time exercise over
their followers much of the authority which they
deny to the Government. The Communist Party
realistically is a state within a state, an
authoritarian dictatorship within a republic. It
 88

demands these freedoms, not for its members, but

for the organized party. It denies to its own
members at the same time the freedom to dissent,
to debate, to deviate from the party line, and
enforces its authoritarian rule by crude purges, if
nothing more violent.
The law of conspiracy has been the chief means
at the Government's disposal to deal with the
growing problems created by such organizations. I
happen to think it is an awkward and inept remedy,
but I find no constitutional authority for taking this
weapon from the Government. There is no
constitutional right to "gang up" on the
Government.
While I think there was power in Congress to
enact this statute and that, as applied in this case,
it cannot be[341 U.S. 494, 578] held
unconstitutional, I add that I have little faith in
38

the long-range effectiveness of this conviction to

stop the rise of the Communist movement.
Communism will not go to jail with these
Communists. No decision by this Court can
forestall revolution whenever the existing
government fails to command the respect and
loyalty of the people and sufficient distress and
discontent is allowed to grow up among the
masses. Many failures by fallen governments attest
that no government can long prevent revolution by
outlawry. 39 Corruption, ineptitude, inflation,
38 The defendants have had the benefit so far in this case of
all the doubts and confusions afforded by attempts to apply
the "clear and present danger" doctrine. While I think it has
no proper application to the case, these efforts have been in
response to their own contentions and favored rather than
prejudiced them. There is no call for reversal on account of
it.

39 The pathetically ineffective efforts of free

European states to overcome feebleness of the
Executive and decomposition of the Legislative branches
of government by legal proscriptions are reviewed in
 89

oppressive taxation, militarization, injustice, and

loss of leadership capable of intellectual initiative
in domestic or foreign affairs are allies on which
the Communists [341 U.S. 494, 579] count to
bring opportunity knocking to their door.
Sometimes I think they may be mistaken. But the
Communists are not building just for today - the
rest of us might profit by their example.

MR. JUSTICE BLACK, dissenting.

Here again, as in Breard v. Alexandria, post, p.
622, decided this day, my basic disagreement with
the Court is not as to how we should explain or
reconcile what was said in prior decisions but
springs from a fundamental difference in
constitutional approach. Consequently, it would
serve no useful purpose to state my position at
length.

Loewenstein, Legislative Control of Political Extremism

in European Democracies, 38 Col. L. Rev. 591, 725
(1938). The Nazi Party seizure of power in Germany
occurred while both it and its Communist counterpart
were under sentence of illegality from the courts of the
Weimar Republic. The German Criminal Code struck
directly at the disciplinary system of totalitarian parties.
It provided:"The participation in an organization the
existence, constitution, or purposes of which are to be
kept secret from the Government, or in which obedience
to unknown superiors or unconditional obedience to
known superiors is pledged, is punishable by
imprisonment up to six months for the members and
from one month to one year for the founders and
officers. Public officials may be deprived of the right to
hold public office for a period of from one to five years."
2 Nazi Conspiracy and Aggression (GPO 1946) 11.
The Czar's government of Russia fell while the
Communist leaders were in exile. See n. 7. Instances of
similar failures could be multiplied indefinitely.
 90

At the outset I want to emphasize what the

crime involved in this case is, and what it is not.
These petitioners were not charged with an
attempt to overthrow the Government. They were
not charged with overt acts of any kind designed
to overthrow the Government. They were not even
charged with saying anything or writing anything
designed to overthrow the Government. The
charge was that they agreed to assemble and to
talk and publish certain ideas at a later date: The
indictment is that they conspired to organize the
Communist Party and to use speech or newspapers
and other publications in the future to teach and
advocate the forcible overthrow of the
Government. No matter how it is worded, this is a
virulent form of prior censorship of speech and
press, which I believe the First Amendment
forbids. I would hold 3 of the Smith Act authorizing
this prior restraint unconstitutional on its face and
as applied.
But let us assume, contrary to all constitutional
ideas of fair criminal procedure, that petitioners
although not indicted for the crime of actual
advocacy, may be punished for it. Even on this
radical assumption, the other opinions in this case
show that the only way to affirm [341 U.S. 494,
580] these convictions is to repudiate directly or
indirectly the established "clear and present
danger" rule. This the Court does in a way which
greatly restricts the protections afforded by the
First Amendment. The opinions for affirmance
indicate that the chief reason for jettisoning the
rule is the expressed fear that advocacy of
Communist doctrine endangers the safety of the
Republic. Undoubtedly, a governmental policy of
unfettered communication of ideas does entail
dangers. To the Founders of this Nation, however,
the benefits derived from free expression were
worth the risk. They embodied this philosophy in
the First Amendment's command that "Congress
 91

shall make no law . . . abridging the freedom of

speech, or of the press . . . ." I have always
believed that the First Amendment is the keystone
of our Government, that the freedoms it
guarantees provide the best insurance against
destruction of all freedom. At least as to speech in
the realm of public matters, I believe that the
"clear and present danger" test does not "mark the
furthermost constitutional boundaries of protected
expression" but does "no more than recognize a
minimum compulsion of the Bill of Rights." Bridges
v. California, 314 U.S. 252, 263 .
So long as this Court exercises the power of
judicial review of legislation, I cannot agree that
the First Amendment permits us to sustain laws
suppressing freedom of speech and press on the
basis of Congress' or our own notions of mere
"reasonableness." Such a doctrine waters down
the First Amendment so that it amounts to little
more than an admonition to Congress. The
Amendment as so construed is not likely to protect
any but those "safe" or orthodox views which
rarely need its protection. I must also express my
objection to the holding because, as MR. JUSTICE
DOUGLAS' dissent shows, it sanctions the
determination of a crucial issue of fact by the
judge rather than by the jury. Nor can I let this
opportunity [341 U.S. 494, 581] pass without
expressing my objection to the severely limited
grant of certiorari in this case which precluded
consideration here of at least two other reasons for
reversing these convictions: (1) the record shows a
discriminatory selection of the jury panel which
prevented trial before a representative cross-
section of the community; (2) the record shows
that one member of the trial jury was violently
hostile to petitioners before and during the trial.
Public opinion being what it now is, few will
protest the conviction of these Communist
petitioners. There is hope, however, that in calmer
 92

times, when present pressures, passions and fears

subside, this or some later Court will restore the
First Amendment liberties to the high preferred
place where they belong in a free society.

MR. JUSTICE DOUGLAS, dissenting.

If this were a case where those who claimed
protection under the First Amendment were
teaching the techniques of sabotage, the
assassination of the President, the filching of
documents from public files, the planting of
bombs, the art of street warfare, and the like, I
would have no doubts. The freedom to speak is not
absolute; the teaching of methods of terror and
other seditious conduct should be beyond the pale
along with obscenity and immorality. This case was
argued as if those were the facts. The argument
imported much seditious conduct into the record.
That is easy and it has popular appeal, for the
activities of Communists in plotting and scheming
against the free world are common knowledge. But
the fact is that no such evidence was introduced at
the trial. There is a statute which makes a
seditious conspiracy unlawful. 40Petitioners,
however, were not [341 U.S. 494, 582] charged
with a "conspiracy to overthrow" the Government.
They were charged with a conspiracy to form a
party and groups and assemblies of people who
40 18 U.S.C. 2384 provides: "If two or more persons in any
State or Territory, or in any place subject to the jurisdiction
of the United States, conspire to overthrow, put down, or to
destroy by force the [341 U.S. 494, 582] Government of the
United States, or to levy war against them, or to oppose by
force the authority thereof, or by force to prevent, hinder, or
delay the execution of any law of the United States, or by
force to seize, take, or possess any property of the United
States contrary to the authority thereof, they shall each be
fined not more than $5,000 or imprisoned not more than six
years, or both."
 93

teach and advocate the overthrow of our

Government by force or violence and with a
conspiracy to advocate and teach its overthrow by
force and violence. 41 It may well be that
indoctrination in the techniques of terror to
destroy the Government would be indictable under
either statute. But the teaching which is
condemned here is of a different character.
So far as the present record is concerned, what
petitioners did was to organize people to teach and
themselves teach the Marxist-Leninist doctrine
contained chiefly in four books: 42 Stalin,
Foundations of Leninism (1924); Marx and Engels,
Manifesto of the Communist Party (1848); Lenin,
The State and Revolution (1917); History of the
Communist Party of the Soviet Union (B.) (1939).
Those books are to Soviet Communism what
Mein Kampf was to Nazism. If they are
understood, the ugliness of Communism is
revealed, its deceit and cunning are exposed, the
nature of its activities becomes apparent, and the
chances of its success less likely. That is not, of
course, the reason why petitioners chose these
books for their classrooms. They are fervent
Communists to whom these volumes are gospel.
They preached the creed with the hope that some
day it would be acted upon. [341 U.S. 494, 583]
The opinion of the Court does not outlaw these
texts nor condemn them to the fire, as the
Communists do literature offensive to their creed.
But if the books themselves are not outlawed, if
they can lawfully remain on library shelves, by
what reasoning does their use in a classroom
become a crime? It would not be a crime under the
41 54 Stat. 671, 18 U.S.C. 10, 11.

42 Other books taught were Stalin, Problems of Leninism,

Strategy and Tactics of World Communism (H. R. Doc. No.
619, 80th Cong., 2d Sess.), and Program of the Communist
International.
 94

Act to introduce these books to a class, though

that would be teaching what the creed of violent
overthrow of the Government is. The Act, as
construed, requires the element of intent - that
those who teach the creed believe in it. The crime
then depends not on what is taught but on who the
teacher is. That is to make freedom of speech turn
not on what is said, but on the intent with which it
is said. Once we start down that road we enter
territory dangerous to the liberties of every citizen.
There was a time in England when the concept
of constructive treason flourished. Men were
punished not for raising a hand against the king
but for thinking murderous thoughts about him.
The Framers of the Constitution were alive to that
abuse and took steps to see that the practice
would not flourish here. Treason was defined to
require overt acts - the evolution of a plot against
the country into an actual project. The present
case is not one of treason. But the analogy is close
when the illegality is made to turn on intent, not
on the nature of the act. We then start probing
men's minds for motive and purpose; they become
entangled in the law not for what they did but for
what they thought; they get convicted not for what
they said but for the purpose with which they said
it.
Intent, of course, often makes the difference in
the law. An act otherwise excusable or carrying
minor penalties may grow to an abhorrent thing if
the evil intent is present. We deal here, however,
not with ordinary acts but with speech, to which
the Constitution has given a special sanction. [341
U.S. 494, 584]
The vice of treating speech as the equivalent of
overt acts of a treasonable or seditious character
is emphasized by a concurring opinion, which by
invoking the law of conspiracy makes speech do
service for deeds which are dangerous to society.
The doctrine of conspiracy has served divers and
 95

oppressive purposes and in its broad reach can be

made to do great evil. But never until today has
anyone seriously thought that the ancient law of
conspiracy could constitutionally be used to turn
speech into seditious conduct. Yet that is precisely
what is suggested. I repeat that we deal here with
speech alone, not with speech plus acts of
sabotage or unlawful conduct. Not a single
seditious act is charged in the indictment. To make
a lawful speech unlawful because two men
conceive it is to raise the law of conspiracy to
appalling proportions. That course is to make a
radical break with the past and to violate one of
the cardinal principles of our constitutional
scheme.
Free speech has occupied an exalted position
because of the high service it has given our
society. Its protection is essential to the very
existence of a democracy. The airing of ideas
releases pressures which otherwise might become
destructive. When ideas compete in the market for
acceptance, full and free discussion exposes the
false and they gain few adherents. Full and free
discussion even of ideas we hate encourages the
testing of our own prejudices and preconceptions.
Full and free discussion keeps a society from
becoming stagnant and unprepared for the
stresses and strains that work to tear all
civilizations apart.
Full and free discussion has indeed been the
first article of our faith. We have founded our
political system on it. It has been the safeguard of
every religious, political, philosophical, economic,
and racial group amongst us. We have counted on
it to keep us from embracing what is cheap and
false; we have trusted the common sense of
our [341 U.S. 494, 585] people to choose the
doctrine true to our genius and to reject the rest.
This has been the one single outstanding tenet that
has made our institutions the symbol of freedom
 96

and equality. We have deemed it more costly to

liberty to suppress a despised minority than to let
them vent their spleen. We have above all else
feared the political censor. We have wanted a land
where our people can be exposed to all the diverse
creeds and cultures of the world.
There comes a time when even speech loses its
constitutional immunity. Speech innocuous one
year may at another time fan such destructive
flames that it must be halted in the interests of the
safety of the Republic. That is the meaning of the
clear and present danger test. When conditions are
so critical that there will be no time to avoid the
evil that the speech threatens, it is time to call a
halt. Otherwise, free speech which is the strength
of the Nation will be the cause of its destruction.
Yet free speech is the rule, not the exception.
The restraint to be constitutional must be based on
more than fear, on more than passionate
opposition against the speech, on more than a
revolted dislike for its contents. There must be
some immediate injury to society that is likely if
speech is allowed. The classic statement of these
conditions was made by Mr. Justice Brandeis in his
concurring opinion in Whitney v. California, 274
U.S. 357, 376 -377,
"Fear of serious injury cannot alone justify
suppression of free speech and assembly. Men
feared witches and burnt women. It is the function
of speech to free men from the bondage of
irrational fears. To justify suppression of free
speech there must be reasonable ground to fear
that serious evil will result if free speech is
practiced. There must be reasonable ground to
believe that the danger apprehended [341 U.S. 494,
586] is imminent. There must be reasonable
ground to believe that the evil to be prevented is a
serious one. Every denunciation of existing law
tends in some measure to increase the probability
that there will be violation of it. Condonation of a
breach enhances the probability. Expressions of
 97

approval add to the probability. Propagation of the

criminal state of mind by teaching syndicalism
increases it. Advocacy of law-breaking heightens it
still further. But even advocacy of violation,
however reprehensible morally, is not a justification
for denying free speech where the advocacy falls
short of incitement and there is nothing to indicate
that the advocacy would be immediately acted on.
The wide difference between advocacy and
incitement, between preparation and attempt,
between assembling and conspiracy, must be borne
in mind. In order to support a finding of clear and
present danger it must be shown either that
immediate serious violence was to be expected or
was advocated, or that the past conduct furnished
reason to believe that such advocacy was then
contemplated.
"Those who won our independence by revolution
were not cowards. They did not fear political
change. They did not exalt order at the cost of
liberty. To courageous, self-reliant men, with
confidence in the power of free and fearless
reasoning applied through the processes of popular
government, no danger flowing from speech can be
deemed clear and present, unless the incidence of
the evil apprehended is so imminent that it may
befall before there is opportunity for full discussion.
If there be time to expose through discussion the
falsehood and fallacies, to avert the evil by the
processes of education, the remedy to be applied is
more speech, not enforced silence." (Italics
added.) [341 U.S. 494, 587]

I had assumed that the question of the clear

and present danger, being so critical an issue in
the case, would be a matter for submission to the
jury. It was squarely held in Pierce v. United
States, 252 U.S. 239, 244 , to be a jury question.
Mr. Justice Pitney, speaking for the Court, said,
"Whether the statement contained in the pamphlet
had a natural tendency to produce the forbidden
consequences, as alleged, was a question to be
 98

determined not upon demurrer but by the jury at

the trial." That is the only time the Court has
passed on the issue. None of our other decisions is
contrary. Nothing said in any of the nonjury cases
has detracted from that ruling. 43 The statement in
Pierce v. United States, supra, states the law as it
has been and as it should be. The Court, I think,
errs when it treats the question as one of law.
Yet, whether the question is one for the Court
or the jury, there should be evidence of record on
the issue. This record, however, contains no
evidence whatsoever showing that the acts
charged, viz., the teaching of the Soviet theory of
revolution with the hope that it will be realized,
have created any clear and present danger to the
Nation. The Court, however, rules to the contrary.
It says, "The formation by petitioners of such a
highly organized conspiracy, with rigidly
disciplined members subject to call when the
leaders, these petitioners, felt that the time had
come for action, coupled with the inflammable
nature of world conditions, similar uprisings in
other countries, and the touch-and-go nature of
our relations with countries with whom petitioners
were in the very least ideologically attuned,
convince us that their convictions were justified on
this score."
That ruling is in my view not responsive to the
issue in the case. We might as well say that the
speech of [341 U.S. 494, 588] petitioners is
outlawed because Soviet Russia and her Red Army
are a threat to world peace.
The nature of Communism as a force on the
world scene would, of course, be relevant to the
issue of clear and present danger of petitioners'
advocacy within the United States. But the primary
consideration is the strength and tactical position

43 The cases which reached the Court are analyzed in the

Appendix attached to this opinion, post, p. 591.
 99

of petitioners and their converts in this country. On

that there is no evidence in the record. If we are to
take judicial notice of the threat of Communists
within the nation, it should not be difficult to
conclude that as a political party they are of little
consequence. Communists in this country have
never made a respectable or serious showing in
any election. I would doubt that there is a village,
let alone a city or county or state, which the
Communists could carry. Communism in the world
scene is no bogeyman; but Communism as a
political faction or party in this country plainly is.
Communism has been so thoroughly exposed in
this country that it has been crippled as a political
force. Free speech has destroyed it as an effective
political party. It is inconceivable that those who
went up and down this country preaching the
doctrine of revolution which petitioners espouse
would have any success. In days of trouble and
confusion, when bread lines were long, when the
unemployed walked the streets, when people were
starving, the advocates of a short-cut by revolution
might have a chance to gain adherents. But today
there are no such conditions. The country is not in
despair; the people know Soviet Communism; the
doctrine of Soviet revolution is exposed in all of its
ugliness and the American people want none of it.
How it can be said that there is a clear and
present danger that this advocacy will succeed is,
therefore, a mystery. Some nations less resilient
than the United States, where illiteracy is high and
where democratic traditions are only budding,
might have to take drastic [341 U.S. 494,
589] steps and jail these men for merely speaking
their creed. But in America they are miserable
merchants of unwanted ideas; their wares remain
unsold. The fact that their ideas are abhorrent
does not make them powerful.
The political impotence of the Communists in
this country does not, of course, dispose of the
 100

problem. Their numbers; their positions in industry

and government; the extent to which they have in
fact infiltrated the police, the armed services,
transportation, stevedoring, power plants,
munitions works, and other critical places - these
facts all bear on the likelihood that their advocacy
of the Soviet theory of revolution will endanger the
Republic. But the record is silent on these facts. If
we are to proceed on the basis of judicial notice, it
is impossible for me to say that the Communists in
this country are so potent or so strategically
deployed that they must be suppressed for their
speech. I could not so hold unless I were willing to
conclude that the activities in recent years of
committees of Congress, of the Attorney General,
of labor unions, of state legislatures, and of Loyalty
Boards were so futile as to leave the country on
the edge of grave peril. To believe that petitioners
and their following are placed in such critical
positions as to endanger the Nation is to believe
the incredible. It is safe to say that the followers of
the creed of Soviet Communism are known to the
F. B. I.; that in case of war with Russia they will be
picked up overnight as were all prospective
saboteurs at the commencement of World War II;
that the invisible army of petitioners is the best
known, the most beset, and the least thriving of
any fifth column in history. Only those held by fear
and panic could think otherwise.
This is my view if we are to act on the basis of
judicial notice. But the mere statement of the
opposing views indicates how important it is that
we know the facts before we act. Neither prejudice
nor hate nor senseless [341 U.S. 494, 590] fear
should be the basis of this solemn act. Free speech
- the glory of our system of government - should
not be sacrificed on anything less than plain and
objective proof of danger that the evil advocated is
imminent. On this record no one can say that
petitioners and their converts are in such a
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strategic position as to have even the slightest

chance of achieving their aims.
The First Amendment provides that "Congress
shall make no law . . . abridging the freedom of
speech." The Constitution provides no exception.
This does not mean, however, that the Nation need
hold its hand until it is in such weakened condition
that there is no time to protect itself from
incitement to revolution. Seditious conduct can
always be punished. But the command of the First
Amendment is so clear that we should not allow
Congress to call a halt to free speech except in the
extreme case of peril from the speech itself. The
First Amendment makes confidence in the common
sense of our people and in their maturity of
judgment the great postulate of our democracy. Its
philosophy is that violence is rarely, if ever,
stopped by denying civil liberties to those
advocating resort to force. The First Amendment
reflects the philosophy of Jefferson "that it is time
enough for the rightful purposes of civil
government, for its officers to interfere when
principles break out into overt acts against peace
and good order." 44 The political censor has no
place in our public debates. Unless and until
extreme and necessitous circumstances are shown,
our aim should be to keep speech unfettered and
to allow the processes [341 U.S. 494, 591] of law
to be invoked only when the provocateurs among
us move from speech to action.
Vishinsky wrote in 1938 in The Law of the
Soviet State, "In our state, naturally, there is and

44 12 Hening's Stat. (Virginia 1823), c. 34, p. 84. Whipple,

Our Ancient Liberties (1927), p. 95, states: "This idea that
the limit on freedom of speech or press should be set only
by an actual overt act was not new. It had been asserted by
a long line of distinguished thinkers including John Locke,
Montesquieu in his The Spirit of the Laws (`Words do not
constitute an overt act'), the Rev. Phillip Furneaux, James
Madison, and Thomas Jefferson."
 102

can be no place for freedom of speech, press, and

so on for the foes of socialism."
Our concern should be that we accept no such
standard for the United States. Our faith should be
that our people will never give support to these
advocates of revolution, so long as we remain loyal
to the purposes for which our Nation was founded.

APPENDIX TO OPINION OF MR. JUSTICE DOUGLAS.

There have been numerous First Amendment

cases before the Court raising the issue of clear
and present danger since Mr. Justice Holmes first
formulated the test in Schenck v. United
States, 249 U.S. 47, 52 . Most of them, however,
have not involved jury trials.
The cases which may be deemed at all relevant
to our problem can be classified as follows:
CONVICTIONS FOR CONTEMPT OF COURT
(NON-JURY): Near v. Minnesota, 283 U.S. 697 ;
Bridges v. California, 314 U.S. 252 ; Thomas v.
Collins, 323 U.S. 516 ; Pennekamp v. Florida, 328
U.S. 331 ; Craig v. Harney, 331 U.S. 367 .
CONVICTIONS BY STATE COURTS SITTING
WITHOUT JURIES, GENERALLY FOR
VIOLATIONS OF LOCAL ORDINANCES: Lovell v.
Griffin, 303 U.S. 444 ; Schneider v. State, 308 U.S.
147 ; Cantwell v. Connecticut, 310 U.S. 296 ;
Marsh v. Alabama, 326 U.S. 501 ; Tucker v.
Texas, 326 U.S. 517 ; Winters v. New York, 333 U.S.
507 ; Saia v. New York, 334 U.S. 558 ; Kovacs v.
Cooper, 336 U.S. 77 ; Kunz v. New York, 340 U.S.
290 ; Feiner v. New York, 340 U.S. 315 .
INJUNCTIONS AGAINST ENFORCEMENT OF
STATE OR LOCAL LAWS (NON-JURY): Grosjean v.
American Press Co., [341 U.S. 494, 592] 297 U.S.
233 ; Hague v. C. I. O., 307 U.S. 496 ; Minersville
School District v. Gobitis, 310 U.S. 586 ; West
Virginia Board of Education v. Barnette, 319 U.S.
624 .
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ADMINISTRATIVE PROCEEDINGS (NON-

JURY): Bridges v. Wixon, 326 U.S. 135 ;
Schneiderman v. United States, 320 U.S. 118 ;
American Communications Association v.
Douds, 339 U.S. 382 .
CASES TRIED BEFORE JURIES FOR
VIOLATIONS OF STATE LAWS DIRECTED
AGAINST ADVOCACY OF ANARCHY, CRIMINAL
SYNDICALISM, ETC.: Gilbert v. Minnesota, 254
U.S. 325 ; Gitlow v. New York, 268 U.S. 652 ;
Whitney v. California, 274 U.S. 357 ; Fiske v.
Kansas, 274 U.S. 380 ; Stromberg v. California, 283
U.S. 359 ; De Jonge v. Oregon, 299 U.S. 353 ;
Herndon v. Lowry, 301 U.S. 242 ; Taylor v.
Mississippi, 319 U.S. 583 ; or for minor local
offenses: Cox v. New Hampshire, 312 U.S. 569 ;
Chaplinsky v. New Hampshire, 315 U.S. 568 ;
Terminiello v. Chicago, 337 U.S. 1 ; Niemotko v.
Maryland, 340 U.S. 268 .
FEDERAL PROSECUTIONS BEFORE JURIES
UNDER THE ESPIONAGE ACT OF 1917
FOLLOWING WORLD WAR I: Schenck v. United
States, 249 U.S. 47 ; Frohwerk v. United
States, 249 U.S. 204 ; Debs v. United States, 249
U.S. 211 ; Abrams v. United States, 250 U.S. 616 ;
Schaefer v. United States, 251 U.S. 466 ; Pierce v.
United States, 252 U.S. 239 . Pierce v. United
States ruled that the question of clear and present
danger was for the jury. In the other cases in this
group the question whether the issue was for the
court or the jury was not raised or passed upon.
FEDERAL PROSECUTION BEFORE A JURY
UNDER THE ESPIONAGE ACT OF 1917
FOLLOWING WORLD WAR II: Hartzel v. United
States, 322 U.S. 680 . The jury was instructed on
clear and present danger in terms drawn from the
language of Mr. Justice Holmes in Schenck v.
United States, supra, p. 52. The Court reversed the
conviction on the ground that there had not been
 104

sufficient evidence for submission of the case to

the jury.