1951 June 4

Smith Act Held Constitutional: Severe Blow to First Amendment


In Dennis v. United States, decided on this day, the Supreme Court upheld the conviction of eleven Communist Party leaders and the constitutionality of the Smith Act, enacted on June 29, 1940, which made it illegal to advocate the violent overthrow of the government. The defendants had been arrested on July 20, 1948, and convicted on October 14, 1949, after a stormy trial. The defense attorneys argued that the government had no evidence of any acts related to the overthrow of the government on the part of the defendants and relied entirely on their words. The decision was 6–2, and eloquent dissents supporting freedom of expression were delivered by Justices Hugo Black and William O. Douglas (see below). The decision was then and is still regarded as one of the most serious blows to the First Amendment as the conviction was based on speech and not action.

Ironically, the key part of the majority’s reasoning was taken from the Circuit Court of Appeals decision written by Judge Learned Hand. In World War I, Hand had overturned a Post Office ban on The Masses magazine, in one of the few pro-civil liberties decisions of the entire wartime period, on July 24, 1917. (His decision was reversed on appeal, however.) Over the 34 years between The Masses decision and Dennis, Hand had clearly become a more conservative justice.

Justice Black in dissent: “Public opinion being what it now is, few will protest the conviction of these Communist petitioners. 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.”

Justice Douglas in dissent: “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.”

Read about the Smith Act and other assaults on Freedom of Speech in times of national crisis: Geoffrey Stone, Perilous Times: Free Speech in Wartime from the Sedition Act of 1798 to the War on Terrorism (2004)

Learn more: Michael R. Belknap, Cold War Political Justice: The Smith Act, the Communist Party, and American Civil Liberties (1977)

Learn more about the Smith Act and its history: http://constitution.findlaw.com/amendment1/annotation13.html

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