1. Dennis v. United States, (1951)
2. Facts: ∆s were members of the Communist Party, and generated pro-revolution materials in violation of the Smith Act. The communist party was believed to pose a significant danger because it advocated violent overthrow o the government.
3. Procedural Posture: ∆’s were convicted of conspiring to advocate the overthrow of the government based on their writings.
4. Issue: Whether the government may criminalize speech which poses a clear and present danger to the government.
5. Holding: Yes.
6. Majority Reasoning: The “clear and present danger” test does not require that the government wait until overthrow is imminent. It only need determine that there are persons advocating the overthrow of the government by force and violence. It does not matter that the government not actually be in any danger of overthrow due to its size and strength, the gov’t still has a substantial interest in putting down dangerous threats. Judge Learned Hand’s test is proper: “whether the gravity of the evil, discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger.” Also, it is not a question of fact for the jury, the existence of sufficient danger is a question of law for the judge.
7. Concurrence Reasoning: [Frankfurter] The clear and present danger test is vague dogma. A better approach is to balance the interests of the government against the interests of free speech and the individual. It is not for the courts to determine the proper balance, Congress has already done so by passing the act.
