354 U.S. 298 (1957), argued 8–9 Oct. 1956, decided 17 June 1957 by vote of 6 to 1; Harlan for the Court, Clark in dissent, Burton, black, and Douglas dissenting in part, Brennan and Whittaker not participating. Fourteen Communist party leaders had been convicted under the conspiracy provisions of the Smith Act just as were the eleven defendants in Dennis v. United States (1951). But in this case the Court found two decisive differences and reversed the convictions of all defendants; however, the cases of nine of the defendants were sent back for new trials.
One of the charges was that the defendants had conspired to organize the Communist party to advocate and teach the duty and necessity of overthrowing the government of the United States by force and violence as speedily as circumstances would permit. Although the American Communist party was first organized in 1919, the conspiracy was alleged to have originated in 1940, when the Smith Act was enacted, and continued down to the date of the indictment in 1951. The government's contention was that the term “organize” meant a continuing process that went on throughout the life of an organization and included recruitment of new members, forming new units, organizing clubs and classes. The defense, however, contended that the party had disbanded and was reformed in 1945 and that “to organize” means to establish, to found, to bring into existence, and that under this meaning of the term the prosecutions were barred by the three‐year statute of limitations.
The Court, conceding that the term “organize” was ambiguous, held that the statute was defective for lack of precision in its definition of a crime. It held that the term “organize” as used in the Smith Act referred only to acts involving the creation of a new organization and did not connote a continuing process.
The indictment also charged the defendants with conspiring to advocate and teach the duty and necessity of overthrowing the government of the United States by force and violence. The Court found that the charge to the jury with respect to advocacy was constitutionally defective because it failed to distinguish between advocacy of forcible overthrow as an abstract doctrine and advocacy of action to that end. The Court said that Dennis did not obliterate that distinction. There may be advocacy of violent action to be taken immediately or at some future date. The latter case must involve the establishment of a seditious group that is maintained in readiness for action at a propitious time. Interpreting Dennis, the Court now said,
[T]hat indoctrination of a group in preparation for future violent action, as well as exhortation to immediate action, by advocacy found to be directed to “action for the accomplishment” of forcible overthrow, [directed] to violence “as a rule or principle of action,” and employing “language of incitement,” … is not constitutionally protected when the group is of sufficient size and cohesiveness, is sufficiently oriented towards action, and other circumstances are such as reasonably to justify apprehension that action will occur. (p. 321)
The trial court had not read Dennis as having this meaning. In the view of the trial court, mere doctrinal justification of forcible overthrow, if engaged in with the intent to accomplish overthrow, was punishable per se under the Smith Act. The charge to the jury—at best ambiguous or equivocal—thus blurred the essential distinction between the advocacy or teaching of abstract doctrine and the advocacy or teaching of action. The advocacy to act, however, the Court held, again interpreting Dennis, did not need to be incitement to take immediate action. It could have been advocacy to do something in the future, as having a group in readiness for action at an appropriate time—a time to strike when the leaders feel the circumstances permit.
The case is chiefly important as a gloss on Dennis. The opinion for the Court clarifies the distinction between advocacy of action and advocacy of doctrine or belief, a distinction, the Court said, that can be found in the free speech and free press cases of the 1920s, especially in Gitlow v. New York (1925). The case also elucidates the point that was so essential to the decision in Dennis, namely, advocacy of action in the future when circumstances will permit the action that the Smith Act proscribes.
Justices Hugo Black and William O. Douglas would have directed that all defendants be acquitted, and argued that the Court should hold the Smith Act unconstitutional as a violation of the First Amendment. As a practical matter, its interpretation of Dennis rendered the Smith Act's conspiracy provisions virtually unusable, and no further prosecutions were ever brought under them.
See also Communism and Cold War; First Amendment; Speech and the Press.
Bibliography
- Milton R. Konvitz, Expanding Liberties: Freedom's Gains in Postwar America (1966), chap. 4.
- Laurence H. Tribe, American Constitutional Law,
2d ed. (1988), chap. 12
— Milton R. Konvitz
