Dennis v. United States

Dennis v. United States
Dennis v. United States
Seal of the United States Supreme Court.svg
Supreme Court of the United States
Argued December 4, 1950
Decided June 4, 1951
Full case name Eugene Dennis, et al. v. United States
Citations 341 U.S. 494 (more)
71 S. Ct. 857; 95 L. Ed. 1137; 1951 U.S. LEXIS 2407
Prior history Motion by co-defendant to dismiss attorney denied, 9 F.R.D. 367 (S.D.N.Y. 1949); defendants convicted, S.D.N.Y., Oct. 29, 1949; affirmed, 183 F.2d 201 (2d Cir. 1950)
Subsequent history Rehearing denied, 342 U.S. 842 (1951); rehearing denied, 355 U.S. 936 (1958)
Defendants' convictions for conspiring to overthrow the U.S. government by force through their participation in the Communist Party were not in violation of the First Amendment. Second Circuit Court of Appeals affirmed.
Court membership
Case opinions
Plurality Vinson, joined by Reed, Burton, Minton
Concurrence Frankfurter
Concurrence Jackson
Dissent Black
Dissent Douglas
Clark took no part in the consideration or decision of the case.
Laws applied
U.S. Const. amend. I; 18 U.S.C. §§ 10, 11 (1946)
Overruled by
Brandenburg v. Ohio, 395 U.S. 444 (1969)

Dennis v. United States, 341 U.S. 494 (1951), was a United States Supreme Court case involving Eugene Dennis, general secretary of the Communist Party USA, which found that Dennis did not have a right under the First Amendment to the Constitution of the United States to exercise free speech, publication and assembly, if that exercise was in furtherance of a conspiracy to overthrow the government.


Background of the case

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 Philip B. Perlman and Irving S. Shapiro argued the cause for the United States. With them on the brief were U.S. Attorney General James Howard McGrath, U.S. Assistant Attorney General McInerney, Irving H. Saypol, Robert W. Ginnane, Frank H. Gordon, Edward C. Wallace, and Lawrence K. Bailey.

Petitioners were indicted in July 1948 for violating a provision of the Smith Act. Petitioners were found guilty by the trial court and the decision was affirmed by the Second Circuit Court of Appeals. The Supreme Court granted writ of certiorari, but limited it to whether section two or three of the Smith Act violated the First Amendment and whether the same two sections violated the First and Fifth Amendments because of indefiniteness.

The court's decision

Handed down as a 6-2 decision by the Court on June 4, 1951, the judgment and a plurality opinion was delivered by Chief Justice of the United States Fred M. Vinson, who was joined by Justices Stanley Forman Reed, Sherman Minton, and Harold H. Burton. Separate concurring opinions were delivered by Justices Felix Frankfurter and Robert H. Jackson. Justices Hugo Black and William O. Douglas wrote separate dissenting opinions. Justice Tom C. Clark did not participate in this case.

The Court rule affirmed the conviction of the petitioner, a leader of the Communist Party in the United States. Dennis had been convicted of conspiring and organizing for the overthrow and destruction of the United States government by force and violence under provisions of the Smith Act. In affirming the conviction, a plurality of the Court adopted Judge Learned Hand's formulation of the clear and present danger test:

In each case [courts] must ask whether the gravity of the "evil," discounted by its improbability, justifies such invasion of free speech as necessary to avoid the danger.

In his dissent, Black wrote:

These petitioners were not charged with an attempt to overthrow the Government. They were not charged with overt acts of any kind designed to overthrow the Government. They were not even charged with saying anything or writing anything designed to overthrow the Government. The charge was that they agreed to assemble and to talk and publish certain ideas at a later date: The indictment is that they conspired to organize the Communist Party and to use speech or newspapers and other publications in the future to teach and advocate the forcible overthrow of the Government. No matter how it is worded, this is a virulent form of prior censorship of speech and press, which I believe the First Amendment forbids. I would hold 3 of the Smith Act authorizing this prior restraint unconstitutional on its face and as applied....

So long as this Court exercises the power of judicial review of legislation, I cannot agree that the First Amendment permits us to sustain laws suppressing freedom of speech and press on the basis of Congress' or our own notions of mere "reasonableness." Such a doctrine waters down the First Amendment so that it amounts to little more than an admonition to Congress. The Amendment as so construed is not likely to protect any but those "safe" or orthodox views which rarely need its protection....

There is hope, however, that in calmer times, when present pressures, passions and fears subside, this or some later Court will restore the First Amendment liberties to the high preferred place where they belong in a free society.


In 1957, the Court in Yates v. United States restricted the holding in Dennis, ruling that the Smith Act did not prohibit advocacy of forcible overthrow of the government as an abstract doctrine. While Yates did not overrule Dennis, it rendered the broad conspiracy provisions of the Smith Act unenforceable.[1] Finally, Brandenburg v. Ohio held that "mere advocacy" of violence was per se protected speech. Brandenburg was a de facto overruling of Dennis, defining the bar for constitutionally unprotected speech to be incitement to "imminent lawless action".[2]

See also


External links

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