Content Regulation / Censorship, Defamation / Reputation, National Security, Political Expression, Press Freedom
Le Ministère Public v. Uwimana Nkusi
Closed Contracts Expression
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The U.S. Supreme Court upheld the convictions of a group of Communist Party organizers who were tried and convicted under the Smith Act for advocating the overthrow of the U.S. government. Eugene Dennis and his collaborators had actively worked to recruit, educate, and teach new members and to prepare for revolution, which was illegal under the Smith Act. The Court reasoned that the willingness and capability of the defendants to foment rebellion constituted an organized conspiracy that qualified as a “clear and present danger,” and that in light of this the provisions of the Smith Act were legitimate restrictions on free speech.
Dennis and his collaborators (“the defendants”) were the intended leaders of the new Communist Party of the United States (the “Communist Party”) which, beginning in 1945, was to replace the Communist Political Association and transform its policy from one of cooperation with the U.S. and its economic and political structure to a policy which worked for the overthrow of the government by force and violence. Included in the Communist Party’s agenda were the recruitment of party members, education on the Marxist-Leninist doctrine of the party, teaching the need for violent overthrow of the government, and using speech in newspapers or books to advocate overthrowing the government.
Despite ongoing efforts to form and run the Communist Party, the defendants’ activities did not result overthrowing the U.S. government.
The defendants were arrested and indicted in July 1948 under Sections 2 and 3 of the Smith Act for their activities organizing and leading the Communist Party of the United States from 1945 to 1948. Section 2 of the Smith Act, passed in 1940, made it a crime to intentionally advocate for the violent overthrow of the U.S. government or to publish materials advocating for its violent overthrow. Section 3 further criminalized any attempt or conspiracy to violate other parts of the Smith Act, including those acts in Section 2. For the purposes of the statute, the “U.S. Government” included all of its subparts and subdivisions.
The jury convicted the defendants following the trial judge’s direction that they could not convict unless they found that there was enough evidence to show that the defendants 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 Smith statute under the First Amendment.
The trial court sentenced the defendants to five years imprisonment and a $10,000 fine. The Court of Appeals affirmed the convictions. The U.S. Supreme Court granted certiorari to decide: (1) whether either § 2 or § 3 of the Smith Act, inherently or as construed and applied in the instant case, violated 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, violated the First and Fifth Amendments because of indefiniteness.
Vinson, C.J., delivered the 5-4 opinion of the Supreme Court.
Before discussing the substantive issues, the Court clarified that the Smith Act required specific intent to overthrow the government, and that such a mens rea requirement was in accordance the principles of Anglo-American criminal jurisprudence.” Furthermore, the Court summarily concluded that “it [was] within the power of the Congress to protect the Government of the United States from armed rebellion.” (at 501.)
The first major issue was whether the Smith Act itself violated the First Amendment as an unlawful abridgement of free speech. The Court dispensed with a facial challenge that the statute prohibited academic discussion and thus intuitively offended the concepts of a free speech and free press as guaranteed by the First Amendment. However the Court distinguished advocacy from mere discussion, on the basis that debate and discussion do not share the specific intent that advocacy and the Smith Act required.
The Court continued from the facial conceptual challenge. It said that even though the Smith Act targeted the teaching and advocacy of overthrowing the U.S. government, teaching and advocacy contain elements of speech, so that the statute must withstand First Amendment scrutiny. The Court reviewed its existing precedent for guidance on how to evaluate the Smith Act under the First Amendment. The Court returned to the case of Schenck v. United States in 1919, then examined Gitlow v. New York, Whitney v. California, and American Communications Association v. Douds, chiefly focusing on the evolution from free speech as a right receiving “no unique emphasis” from the Court to a right demanding that “one be permitted to advocate what he will unless there is a clear and present danger that a substantial public evil will result.” (at 508, quoting Douds.) The clear and present danger rule had been largely developed by Justices Oliver Wendell Holmes and Louis Brandeis. The Court further adopted Judge Learned Hand’s addendum to the clear and present danger test: “whether the gravity of the ‘evil,’ discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger.” (quoting Dennis.) The Court emphasized that, the text of the First Amendment aside, free speech is not an unlimited right, and that the low societal value of some speech justified its restriction.
The Court found that governmental overthrow was a substantial public evil and preventing overthrow was a substantial interest. Preventing overthrow of the government by force and violence “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.” (at 509.)
The Court also found a clear and present danger to sustain a conviction. Even though the defendants’ efforts had not yet culminated in an attempt to overthrow the government, the Communist Party was dedicated to overthrowing the government as soon as circumstances permitted, the party constituted a organized conspiracy, its members were rigidly disciplined, Communist Party members were “ready to make the attempt” to overthrow the government, and there were “inflammable nature of world conditions” and related uprisings in other countries. (at 510-11) The defendants’ contention that mere conspiracy could not be punished was incorrect, as the existence of the conspiracy itself created a clear and present danger.
Finally, the law was not a violation of the Fifth and First Amendments for being too vague by “not sufficiently advising those who would speak of the limitations upon their activity.” (at 515.) While application of the clear and present danger test is not a definite mathematical formula, the clear and present danger test is an established standard as interpreted by the courts. It made no difference that the clear and present danger rule is a creature of case law created by the courts instead of one put into the text by the legislature: it is the rule and it is sufficiently clear.
In conclusion, the Smith Act was constitutional and constitutional as applied to the defendant organizers of the Communist Party, and the organizers posed a clear and present danger by advocating and intending to overthrow the U.S. government “as speedily as the circumstances would permit.” (at 510.) The Court affirmed their convictions.
Clark, J., did not take part in the case.
Frankfurter, J., concurred in affirming of the judgment and convictions. Justice Frankfurter seemed bothered by the policy of punishing advocates, the paranoia provoking it, and what it meant for democracy, but was bound by the law to uphold the convictions.
Jackson, J., wrote a concurring opinion. Justice Jackson discussed securing order against “revolutionary radicalism,” and thought that the law of conspiracy was a more appropriate standard for the case than the clear and present danger test reserved for speech cases.
Black, J., wrote a dissenting opinion. Justice Black did not believe the First Amendment permitted laws suppressing freedom of speech based on mere “reasonableness,” and that such standards and laws diluted the First Amendment.
Douglas, J., wrote a dissenting opinion. Justice Douglas disagreed with treating speech (including conspiracy) “as the equivalent of overt acts of a treasonable or seditious character.” “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.” (at 591.)
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision contracts expression albeit in the government’s “substantial interest” in protecting itself from violent overthrow. While outright advocacy for violent overthrow poses the possibility of a “substantial public evil,” the democratic notion of free speech is based on the idea that vibrant democracies can tolerate such discussion and facilitate peaceful transitions of power.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Sections 2, 3
Case significance refers to how influential the case is and how its significance changes over time.
Dennis, a 6-2 decision, was binding at the time it was decided, as U.S. Supreme Court decisions are binding and mandatory authority on all jurisdictions in the U.S.
While the Supreme Court may not have explicitly overruled Dennis, several cases appear to conflict with its result and call its status as good law into question:
Let us know if you notice errors or if the case analysis needs revision.