Dennis v. United States (341 U.S. 494)/Concurrence Frankfurter

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Dennis v. United States by Felix Frankfurter
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MR. JUSTICE FRANKFURTER, concurring in affirmance of the judgment.

The defendants were convicted under § 3 of the Smith Act for conspiring to violate § 2 of that Act, which makes it unlawful

to organize or help to organize any society, group, or assembly of persons who teach, advocate, or encourage the overthrow or destruction of any government in the United States by force or violence.

Act of June 28, 1940, § 2(a)(3), 54 Stat. 670, 671, 18 U.S.C. § 10 now 18 U.S.C. § 2385. The substance of the indictment is that the defendants between April 1, 1945, and July 20, 1948, agreed to bring about the dissolution of a body known as the Communist Political Association and to organize in its place the Communist Party of the United States; that the aim of the new party was "the overthrow and destruction of the Government of the United States by force and violence"; that the defendants were to assume leadership of the Party and to recruit members for it and that the Party was to publish books and conduct classes, teaching the duty and the necessity of forceful overthrow. The jury found all the defendants guilty. With one exception, each was sentenced to imprisonment for five years and to a fine of $10,000. The convictions were affirmed by the Court of Appeals for the Second [p518] Circuit. 183 F.2d 201. We were asked to review this affirmance on all the grounds considered by the Court of Appeals. These included not only the scope of the freedom of speech guaranteed by the Constitution, but also serious questions regarding the legal composition of the jury and the fair conduct of the trial. We granted certiorari, strictly limited, however, to the contention that §§ 2 and 3 of the Smith Act, inherently and as applied, violated the First and Fifth Amendments. 340 U.S. 863. No attempt was made to seek an enlargement of the range of questions thus defined, and these alone are now open for our consideration. All others are foreclosed by the decision of the Court of Appeals.

As thus limited, the controversy in this Court turns essentially on the instructions given to the jury for determining guilt or innocence. 9 F.R.D. 367. The first question is whether -- wholly apart from constitutional matters -- the judge's charge properly explained to the jury what it is that the Smith Act condemns. The conclusion that he did so requires no labored argument. On the basis of the instructions, the jury found, for the purpose of our review, that the advocacy which the defendants conspired to promote was to be a rule of action, by language reasonably calculated to incite persons to such action, and was intended to cause the overthrow of the Government by force and violence as soon as circumstances permit. This brings us to the ultimate issue. In enacting a statute which makes it a crime for the defendants to conspire to do what they have been found to have conspired to do, did Congress exceed its constitutional power?

Few questions of comparable import have come before this Court in recent years. The appellants maintain that they have a right to advocate a political theory, so long, at least, as their advocacy does not create an immediate danger of obvious magnitude to the very existence of [p519] our present scheme of society. On the other hand, the Government asserts the right to safeguard the security of the Nation by such a measure as the Smith Act. Our judgment is thus solicited on a conflict of interests of the utmost concern to the wellbeing of the country. This conflict of interests cannot be resolved by a dogmatic preference for one or the other, nor by a sonorous formula which is, in fact, only a euphemistic disguise for an unresolved conflict. If adjudication is to be a rational process, we cannot escape a candid examination of the conflicting claims with full recognition that both are supported by weighty title-deeds.

I[edit]

There come occasions in law, as elsewhere, when the familiar needs to be recalled. Our whole history proves even more decisively than the course of decisions in this Court that the United States has the powers inseparable from a sovereign nation.

America has chosen to be, in many respects, and to many purposes, a nation, and for all these purposes, her government is complete; to all these objects, it is competent.

Chief Justice Marshall in Cohens v. Virginia, 6 Wheat. 264, 414. The right of a government to maintain its existence -- self-preservation -- is the most pervasive aspect of sovereignty. "Security against foreign danger," wrote Madison, "is one of the primitive objects of civil society." The Federalist, No. 41. The constitutional power to act upon this basic principle has been recognized by this Court at different periods and under diverse circumstances.

To preserve its independence, and give security against foreign aggression and encroachment, is the highest duty of every nation, and to attain these ends nearly all other considerations are to be subordinated. It matters not in what form such aggression and encroachment come. . . . The government, possessing the powers which are to be exercised [p520] for protection and security, is clothed with authority to determine the occasion on which the powers shall be called forth. . . .

Chinese Exclusion Case, 130 U.S. 581, 606. See also De Lima v. Bidwell, 182 U.S. 1; Mackenzie v. Hare, 239 U.S. 299; Missouri v. Holland, 252 U.S. 416; United States v. Curtiss-Wright Corp., 299 U.S. 304. The most tragic experience in our history is a poignant reminder that the Nation's continued existence may be threatened from within. To protect itself from such threats, the Federal Government

is invested with all those inherent and implied powers which, at the time of adopting the Constitution, were generally considered to belong to every government as such, and as being essential to the exercise of its functions.

Mr. Justice Bradley, concurring in Legal Tender Cases, 12 Wall. 457, 554, 556, and see In re Debs, 158 U.S. 564, 582.

But even the all-embracing power and duty of self-preservation are not absolute. Like the war power, which is indeed an aspect of the power of self-preservation, it is subject to applicable constitutional limitations. See Hamilton v. Kentucky Distilleries Co., 251 U.S. 146, 156. Our Constitution has no provision lifting restrictions upon governmental authority during periods of emergency, although the scope of a restriction may depend on the circumstances in which it is invoked.

The First Amendment is such a restriction. It exacts obedience even during periods of war; it is applicable when war clouds are not figments of the imagination no less than when they are. The First Amendment categorically demands that

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The right of a man to think what he [p521] pleases, to write what he thinks, and to have his thoughts made available for others to hear or read has an engaging ring of universality. The Smith Act and this conviction under it no doubt restrict the exercise of free speech and assembly. Does that, without more, dispose of the matter?

Just as there are those who regard as invulnerable every measure for which the claim of national survival is invoked, there are those who find in the Constitution a wholly unfettered right of expression. Such literalness treats the words of the Constitution as though they were found on a piece of outworn parchment instead of being words that have called into being a nation with a past to be preserved for the future. The soil in which the Bill of Rights grew was not a soil of arid pedantry. The historic antecedents of the First Amendment preclude the notion that its purpose was to give unqualified immunity to every expression that touched on matters within the range of political interest. The Massachusetts Constitution of 1780 guaranteed free speech; yet there are records of at least three convictions for political libels obtained between 1799 and 1803. [1] The Pennsylvania Constitution of 1790 and the Delaware Constitution of 1792 expressly imposed liability for abuse of the right of free speech. [2] Madison's own State put on its books in 1792 a statute confining the abusive exercise of the right of utterance. [3] And it deserves to be noted that, in writing to John Adams' wife, Jefferson did not rest his condemnation of the Sedition Act of 1798 on his belief in [p522] unrestrained utterance as to political matter. The First Amendment, he argued, reflected a limitation upon Federal power, leaving the right to enforce restrictions on speech to the States. [4] [p523]

The language of the First Amendment is to be read not as barren words found in a dictionary but as symbols of historic experience illumined by the presuppositions of those who employed them. Not what words did Madison and Hamilton use, but what was it in their minds which they conveyed? Free speech is subject to prohibition of those abuses of expression which a civilized society may forbid. As in the case of every other provision of the Constitution that is not crystallized by the nature of its technical concepts, the fact that the First Amendment is not self-defining and self-enforcing neither impairs its usefulness nor compels its paralysis as a living instrument. [p524]

"The law is perfectly well settled," this Court said over fifty years ago,

that the first ten amendments to the Constitution, commonly known as the Bill of Rights, were not intended to lay down any novel principles of government, but simply to embody certain guaranties and immunities which we had inherited from our English ancestors, and which had from time immemorial been subject to certain well recognized exceptions arising from the necessities of the case. In incorporating these principles into the fundamental law, there was no intention of disregarding the exceptions, which continued to be recognized as if they had been formally expressed.

Robertson v. Baldwin, 165 U.S. 275, 281. That this represents the authentic view of the Bill of Rights and the spirit in which it must be construed has been recognized again and again in cases that have come here within the last fifty years. See, e.g., Gompers v. United States, 233 U.S. 604, 610. Absolute rules would inevitably lead to absolute exceptions, and such exceptions would eventually corrode the rules. [5] The demands of free speech in a democratic society, as well as the interest [p525] in national security are better served by candid and informed weighing of the competing interests, within the confines of the judicial process, than by announcing dogmas too inflexible for the non-Euclidian problems to be solved.

But how are competing interests to be assessed? Since they are not subject to quantitative ascertainment, the issue necessarily resolves itself into asking, who is to make the adjustment? -- who is to balance the relevant factors and ascertain which interest is in the circumstances to prevail? Full responsibility for the choice cannot be given to the courts. Courts are not representative bodies. They are not designed to be a good reflex of a democratic society. Their judgment is best informed, and therefore most dependable, within narrow limits. Their essential quality is detachment, founded on independence. History teaches that the independence of the judiciary is jeopardized when courts become embroiled in the passions of the day and assume primary responsibility in choosing between competing political, economic and social pressures.

Primary responsibility for adjusting the interests which compete in the situation before us of necessity belongs to the Congress. The nature of the power to be exercised by this Court has been delineated in decisions not charged with the emotional appeal of situations such as that now before us. We are to set aside the judgment of those whose duty it is to legislate only if there is no reasonable basis for it. Sinking-Fund Cases, 99 U.S. 700, 718; Mugler v. Kansas, 123 U.S. 623, 660-661; United States v. Carolene Products Co., 304 U.S. 144. We are to determine whether a statute is sufficiently definite to meet the constitutional requirements of due process, and whether it respects the safeguards against undue concentration of authority secured by separation of power. United States v. Cohen Grocery Co., 255 U.S. 81. [p526] We must assure fairness of procedure, allowing full scope to governmental discretion but mindful of its impact on individuals in the context of the problem involved. Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123. And, of course, the proceedings in a particular case before us must have the warrant of substantial proof. Beyond these powers we must not go; we must scrupulously observe the narrow limits of judicial authority even though self-restraint is alone set over us. Above all, we must remember that this Court's power of judicial review is not "an exercise of the powers of a super-legislature." Mr. Justice Brandeis and Mr. Justice Holmes, dissenting in Burns Baking Co. v. Bryan, 264 U.S. 504, 534.

A generation ago, this distribution of responsibility would not have been questioned. See Fox v. Washington, 236 U.S. 273; Meyer v. Nebraska, 262 U.S. 390; Bartels v. Iowa, 262 U.S. 404; cf. New York ex rel. Bryant v. Zimmerman, 278 U.S. 63. But, in recent decisions, we have made explicit what has long been implicitly recognized. In reviewing statutes which restrict freedoms protected by the First Amendment, we have emphasized the close relation which those freedoms bear to maintenance of a free society. See Kovacs v. Cooper, 336 U.S. 77, 89, 95 (concurring). Some members of the Court -- and at times a majority -- have done more. They have suggested that our function in reviewing statutes restricting freedom of expression differs sharply from our normal duty in sitting in judgment on legislation. It has been said that such statutes

must be justified by clear public interest, threatened not doubtfully or remotely, but by clear and present danger. The rational connection between the remedy provided and the evil to be curbed, which in other contexts might support legislation against attack on due process grounds, will not suffice.

Thomas v. Collins, 323 U.S. 516, 530. It has been suggested, with the casualness of a footnote, that such legislation is not [p527] presumptively valid, see United States v. Carolene Products Co., 304 U.S. 144, 152, n. 4, and it has been weightily reiterated that freedom of speech has a "preferred position" among constitutional safeguards. Kovacs v. Cooper, 336 U.S. 77, 88.

The precise meaning intended to be conveyed by these phrases need not now be pursued. It is enough to note that they have recurred in the Court's opinions, and their cumulative force has, not without justification, engendered belief that there is a constitutional principle, expressed by those attractive but imprecise words, prohibiting restriction upon utterance unless it creates a situation of "imminent" peril against which legislation may guard. [6] It is on this body of the Court's pronouncements that the defendants' argument here is based.

In all fairness, the argument cannot be met by reinterpreting the Court's frequent use of "clear" and "present" to mean an entertainable "probability." In giving this meaning to the phrase "clear and present danger," the Court of Appeals was fastidiously confining the rhetoric of opinions to the exact scope of what was decided by them. We have greater responsibility for having given constitutional support, over repeated protests, to uncritical libertarian generalities. [p528]

Nor is the argument of the defendants adequately met by citing isolated cases. Adjustment of clash of interests which are at once subtle and fundamental is not likely to reveal entire consistency in a series of instances presenting the clash. It is not too difficult to find what one seeks in the language of decisions reporting the effort to reconcile free speech with the interests with which it conflicts. The case for the defendants requires that their conviction be tested against the entire body of our relevant decisions. Since the significance of every expression of thought derives from the circumstances evoking it, results reached, rather than language employed give the vital meaning. See Cohens v. Virginia, 6 Wheat. 264, 442; Wambaugh, The Study of Cases, 10.

There is an added reason why we must turn to the decisions. "Great cases," it is appropriate to remember,

like hard cases, make bad law. For great cases are called great not by reason of their real importance in shaping the law of the future, but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment. These immediate interests exercise a kind of hydraulic pressure which makes what previously was clear seem doubtful, and before which even well settled principles of law will bend.

Mr. Justice Holmes, dissenting in Northern Securities Co. v. United States, 193 U.S. 197, 400-401.

This is such a case. Unless we are to compromise judicial impartiality and subject these defendants to the risk of an ad hoc judgment influenced by the impregnating atmosphere of the times, the constitutionality of their conviction must be determined by principles established in cases decided in more tranquil periods. If those decisions are to be used as a guide, and not as an argument, it is important to view them as a whole, and to distrust the easy generalizations to which some of them lend themselves. [p529]

II[edit]

We have recognized and resolved conflicts between speech and competing interests in six different types of cases. [7]

1. The cases involving a conflict between the interest in allowing free expression of ideas in public places and the interest in protection of the public peace and the primary uses of streets and parks, were too recently considered to be rehearsed here. Niemotko v. Maryland, 340 U.S. 268, 273. It suffices to recall that the result in each case was found to turn on the character of the interest with which the speech clashed, the method used to impose the restriction, and the nature and circumstances of the utterance prohibited. While the decisions recognized the importance of free speech and carefully scrutinized the justification for its regulation, they rejected the notion that vindication of the deep public interest in freedom of expression requires subordination of all conflicting values.

2. A critique of the cases testing restrictions on picketing is made more difficult by the inadequate recognition by the Court from the outset that the loyalties and responses evoked and exacted by picket lines differentiate this form of expression from other modes of communication. See Thornhill v. Alabama, 310 U.S. 88. But the [p530] crux of the decision in the Thornhill case was that a State could not constitutionally punish peaceful picketing when neither the aim of the picketing nor the manner in which it was carried out conflicted with a substantial interest. In subsequent decisions, we sustained restrictions designed to prevent recurrence of violence, Milk Wagon Drivers Union v. Meadowmoor Dairies, 312 U.S. 287, or reasonably to limit the area of industrial strife, Carpenters & Joiners Union v. Ritter's Cafe, 315 U.S. 722; cf. Bakery & Pastry Drivers Local v. Wohl, 315 U.S. 769. We held that a State's policy against restraints of trade justified it in prohibiting picketing which violated that policy, Giboney v. Empire Storage Co., 336 U.S. 490; we sustained restrictions designed to encourage self-employed persons, International Brotherhood of Teamsters Union v. Hanke, 339 U.S. 470, and to prevent racial discrimination, Hughes v. Superior Court, 339 U.S. 460. The Fourteenth Amendment bars a State from prohibiting picketing when there is no fair justification for the breadth of the restriction imposed. American Federation of Labor v. Swing, 312 U.S. 321; Cafeteria Employees Union v. Angelos, 320 U.S. 293. But it does not prevent a State from denying the means of communication that picketing affords in a fair balance between the interests of trade unionism and other interests of the community.

3. In three cases, we have considered the scope and application of the power of the Government to exclude, deport, or denaturalize aliens because of their advocacy or their beliefs. In United States ex rel. Turner v. Williams, 194 U.S. 279, we held that the First Amendment did not disable Congress from directing the exclusion of an alien found in an administrative proceeding to be an anarchist. "[A]s long as human governments endure," we said, "they cannot be denied the power of self-preservation, as that question is presented here." [p531] 194 U.S. at 294. In Schneiderman v. United States, 320 U.S. 118, and Bridges v. Wixon, 326 U.S. 135, we did not consider the extent of the power of Congress. In each case, by a closely divided Court, we interpreted a statute authorizing denaturalization or deportation to impose on the Government the strictest standards of proof.

4. History regards "freedom of the press" as indispensable for a free society and for its government. We have, therefore, invalidated discriminatory taxation against the press and prior restraints on publication of defamatory matter. Grosjean v. American Press Co., 297 U.S. 233; Near v. Minnesota, 283 U.S. 697.

We have also given clear indication of the importance we attach to dissemination of ideas in reviewing the attempts of States to reconcile freedom of the press with protection of the integrity of the judicial process. In Pennekamp v. Florida, 328 U.S. 331, the Court agreed that the Fourteenth Amendment barred a State from adjudging in contempt of court the publisher of critical and inaccurate comment about portions of a litigation that, for all practical purposes, were no longer pending. We likewise agreed, in a minor phase of our decision in Bridges v. California, 314 U.S. 252, that even when statements in the press relate to matters still pending before a court, convictions for their publication cannot be sustained if their utterance is too trivial to be deemed a substantial threat to the impartial administration of justice.

The Court has, however, sharply divided on what constitutes a sufficient interference with the course of justice. In the first decision, Patterson v. Colorado, 205 U.S. 454, the Court affirmed a judgment for contempt imposed by a State supreme court for publication of articles reflecting on the conduct of the court in cases still before it on [p532] motions for rehearing. In the Bridges case, however, a majority held that a State court could not protect itself from the implied threat of a powerful newspaper that failure of an elected judge to impose a severe sentence would be a "serious mistake." The same case also placed beyond a State's power to punish the publication of a telegram from the president of an important union who threatened a damaging strike in the event of an adverse decision. The majority in Craig v. Harney, 331 U.S. 367, 376, held that the Fourteenth Amendment protected "strong," "intemperate," "unfair" criticism of the way an elected lay judge was conducting a pending civil case. None of the cases establishes that the public interest in a free press must in all instances prevail over the public interest in dispassionate adjudication. But the Bridges and Craig decisions, if they survive, tend to require a showing that interference be so imminent and so demonstrable that the power theoretically possessed by the State is largely paralyzed.

5. Our decision in American Communications Assn. v. Douds, 339 U.S. 382, recognized that the exercise of political rights protected by the First Amendment was necessarily discouraged by the requirement of the Taft-Hartley Act that officers of unions employing the services of the National Labor Relations Board sign affidavits that they are not Communists. But we held that the statute was not for this reason presumptively invalid. The problem, we said, was

one of weighing the probable effects of the statute upon the free exercise of the right of speech and assembly against the congressional determination that political strikes are evils of conduct which cause substantial harm to interstate commerce and that Communists and others identified by § 9(h) pose continuing threats to that public interest when in positions of union leadership. [p533]

339 U.S. at 400. On balance, we decided that the legislative judgment was a permissible one. [8]

6. Statutes prohibiting speech because of its tendency to lead to crime present a conflict of interests which bears directly on the problem now before us. The first case in which we considered this conflict was Fox v. Washington, supra. The statute there challenged had been interpreted to prohibit publication of matter "encouraging an actual breach of law." We held that the Fourteenth Amendment did not prohibit application of the statute to an article which we concluded incited a breach of laws against indecent exposure. We said that the statute

lays hold of encouragements that, apart from statute, if directed to a particular person's conduct, generally would make him who uttered them guilty of a misdemeanor, if not an accomplice or a principal in the crime encouraged, and deals with the publication of them to a wider and less selected audience.

236 U.S. at 277-278. To be sure, the Fox case preceded the explicit absorption of the substance of the First Amendment in the Fourteenth. But subsequent decisions extended the Fox principle to free speech situations. They are so important to the problem before us that we must consider them in detail.

(a) The first important application of the principle was made in six cases arising under the Espionage Act of 1917. That Act prohibits conspiracies and attempts [p534] to "obstruct the recruiting or enlistment service." In each of the first three cases, Mr. Justice Holmes wrote for a unanimous Court, affirming the convictions. The evidence in Schenck v. United States, 249 U.S. 47, showed that the defendant had conspired to circulate among men called for the draft 15,000 copies of a circular which asserted a "right" to oppose the draft. The defendant in Frohwerk v. United States, 249 U.S. 204, was shown to have conspired to publish in a newspaper twelve articles describing the sufferings of American troops and the futility of our war aims. The record was inadequate, and we said that it was therefore

impossible to say that it might not have been found that the circulation of the paper was in quarters where a little breath would be enough to kindle a flame and that the fact was known and relied upon by those who sent the paper out.

249 U.S. at 209. In Debs v. United States, 249 U.S. 211, the indictment charged that the defendant had delivered a public speech expounding socialism and praising Socialists who had been convicted of abetting violation of the draft laws.

The ground of decision in each case was the same. The First Amendment

cannot have been, and obviously was not, intended to give immunity for every possible use of language. Robertson v. Baldwin, 165 U.S. 275, 281.

Frohwerk v. United States, supra, at 206.

The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree.

Schenck v. United States, supra, at 52. When "the words used had as their natural tendency and reasonably probable effect to obstruct the recruiting service," and "the defendant had the specific intent to do so in his mind," conviction in wartime is not prohibited by the Constitution. Debs v. United States, supra, at 216. [p535]

In the three succeeding cases, Holmes and Brandeis, JJ., dissented from judgments of the Court affirming convictions. The indictment in Abrams v. United States, 250 U.S. 616, was laid under an amendment to the Espionage Act which prohibited conspiracies to advocate curtailment of production of material necessary to prosecution of the war, with the intent thereby to hinder the United States in the prosecution of the war. It appeared that the defendants were anarchists who had printed circulars and distributed them in New York City. The leaflets repeated standard Marxist slogans, condemned American intervention in Russia, and called for a general strike in protest. In Schaefer v. United States, 251 U.S. 466, the editors of a German language newspaper in Philadelphia were charged with obstructing the recruiting service and with willfully publishing false reports with the intent to promote the success of the enemies of the United States. The evidence showed publication of articles which accused American troops of weakness and mendacity, and in one instance misquoted or mistranslated two words of a Senator's speech. The indictment in Pierce v. United States, 252 U.S. 239, charged that the defendants had attempted to cause insubordination in the armed forces and had conveyed false reports with intent to interfere with military operations. Conviction was based on circulation of a pamphlet which belittled Allied war aims and criticized conscription in strong terms.

In each case, both the majority and the dissenting opinions relied on Schenck v. United States. The Court divided on its view of the evidence. The majority held that the jury could infer the required intent and the probable effect of the articles from their content. Holmes and Brandeis, JJ., thought that only "expressions of opinion and exhortations," 250 U.S. at 631, were involved, that they were "puny anonymities," 250 U.S. at 629, "impotent to produce the evil against which the statute aimed," 251 [p536] U.S. 493, and that, from them, the specific intent required by the statute could not reasonably be inferred. The Court agreed that an incitement to disobey the draft statute could constitutionally be punished. It disagreed over the proof required to show such an incitement.

(b) In the eyes of a majority of the Court, Gitlow v. New York, 268 U.S. 652, presented a very different problem. There, the defendant had been convicted under a New York statute nearly identical with the Smith Act now before us. The evidence showed that the defendant was an official of the Left Wing Section of the Socialist Party, and that he was responsible for publication of a Left Wing Manifesto. This document repudiated "moderate Socialism," and urged the necessity of a militant "revolutionary Socialism," based on class struggle and revolutionary mass action. No evidence of the effect of the Manifesto was introduced, but the jury were instructed that they could not convict unless they found that the document advocated employing unlawful acts for the purpose of overthrowing organized government.

The conviction was affirmed. The question, the Court held, was entirely different from that involved in Schenck v. United States, where the statute prohibited acts without reference to language. Here, where

the legislative body has determined generally, in the constitutional exercise of its discretion, that utterances of a certain kind involve such danger of substantive evil that they may be punished, the question whether any specific utterance coming within the prohibited class is likely, in and of itself, to bring about the substantive evil is not open to consideration.

268 U.S. at 670. It is sufficient that the defendant's conduct falls within the statute, and that the statute is a reasonable exercise of legislative judgment.

This principle was also applied in Whitney v. California, 274 U.S. 357, to sustain a conviction under a State criminal syndicalism statute. That statute made it a [p537] felony to assist in organizing a group assembled to advocate the commission of crime, sabotage, or unlawful acts of violence as a means of effecting political or industrial change. The defendant was found to have assisted in organizing the Communist Labor Party of California, an organization found to have the specified character. It was held that the legislature was not unreasonable in believing organization of such a party

involves such danger to the public peace and the security of the State, that these acts should be penalized in the exercise of its police power.

274 U.S. at 371.

In neither of these cases did Mr. Justice Holmes and Mr. Justice Brandeis accept the reasoning of the Court. "‘The question,'" they said, quoting from Schenck v. United States,

"in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that [the State] has a right to prevent."

268 U.S. at 672-673. Since the Manifesto circulated by Gitlow "had no chance of starting a present conflagration," 268 U.S. at 673, they dissented from the affirmance of his conviction. In Whitney v. California, they concurred in the result reached by the Court, but only because the record contained some evidence that organization of the Communist Labor Party might further a conspiracy to commit immediate serious crimes, and the credibility of the evidence was not put in issue by the defendant. [9]

(c) Subsequent decisions have added little to the principles established in these two groups of cases. In the only case arising under the Espionage Act decided by this Court during the last war, the substantiality of the evidence was the crucial issue. The defendant in Hartzel [p538] v. United States, 322 U.S. 680, was an educated man and a citizen, not actively affiliated with any political group. In 1942, he wrote three articles condemning our wartime allies and urging that the war be converted into a racial conflict. He mailed the tracts to 600 people, including high-ranking military officers. According to his testimony, his intention was to "create sentiment against war amongst the white races." The majority of this Court held that a jury could not reasonably infer from these facts that the defendant had acted with a specific intent to cause insubordination or disloyalty in the armed forces.

Of greater importance is the fact that the issue of law which divided the Court in the Gitlow and Whitney cases has not again been clearly raised, although in four additional instances we have reviewed convictions under comparable statutes. Fiske v. Kansas, 274 U.S. 380, involved a criminal syndicalism statute similar to that before us in Whitney v. California. We reversed a conviction based on evidence that the defendant exhibited an innocuous preamble to the constitution of the Industrial Workers of the World in soliciting members for that organization. In Herndon v. Lowry, 301 U.S. 242, the defendant had solicited members for the Communist Party, but there was no proof that he had urged or even approved those of the Party's aims which were unlawful. We reversed a conviction obtained under a statute prohibiting an attempt to incite to insurrection by violence on the ground that the Fourteenth Amendment prohibited conviction where, on the evidence, a jury could not reasonably infer that the defendant had violated the statute the State sought to apply. [10] [p539]

The other two decisions go no further than to hold that the statute, as construed by the State courts, exceeded the bounds of a legislative judgment founded in reason. The statute presented in De Jonge v. Oregon, 299 U.S. 353, had been construed to apply to anyone who merely assisted in the conduct of a meeting held under the auspices of the Communist Party. In Taylor v. Mississippi, 319 U.S. 583, the statute prohibited dissemination of printed matter "designed and calculated to encourage violence, sabotage, or disloyalty to the government of the United States, or the state of Mississippi." We reversed a conviction for what we concluded was mere criticism and prophesy, without indicating whether we thought the statute could in any circumstances validly be applied. What the defendants communicated, we said,

is not claimed or shown to have been done with an evil or sinister purpose, to have advocated or incited subversive action against the nation or state, or to have threatened any clear and present danger to our institutions or our Government.

319 U.S. at 589-590.

I must leave to others the ungrateful task of trying to reconcile all these decisions. In some instances, we have too readily permitted juries to infer deception from error, or intention from argumentative or critical statements. Abrams v. United States, supra; Schaefer v. United States, supra; Pierce v. United States, supra; Gilbert v. Minnesota, 254 U.S. 325. In other instances, we weighted the interest in free speech so heavily that we permitted essential conflicting values to be destroyed. Bridges v. California, supra; Craig v. Harney, supra. Viewed as a whole, however, the decisions express an attitude toward the judicial function and a standard of values which, for me, are decisive of the case before us.

First. -- Free-speech cases are not an exception to the principle that we are not legislators, that direct policymaking is not our province. How best to reconcile competing [p540] interests is the business of legislatures, and the balance they strike is a judgment not to be displaced by ours, but to be respected unless outside the pale of fair judgment.

On occasion, we have strained to interpret legislation in order to limit its effect on interests protected by the First Amendment. Schneiderman v. United States, supra; Bridges v. Wixon, supra. In some instances, we have denied to States the deference to which I think they are entitled. Bridges v. California, supra; Craig v. Harney, supra. Once in this recent course of decisions the Court refused to permit a jury to draw inferences which seemed to me to be obviously reasonable. Hartzel v. United States, supra.

But in no case has a majority of this Court held that a legislative judgment, even as to freedom of utterance, may be overturned merely because the Court would have made a different choice between the competing interests had the initial legislative judgment been for it to make. In the cases in which the opinions go farthest towards indicating a total rejection of respect for legislative determinations, the interests between which choice was actually made were such that decision might well have been expressed in the familiar terms of want of reason in the legislative judgment. In Thomas v. Collins, 323 U.S. 516, for example, decision could not unreasonably have been placed on the ground that no substantial interest justified a State in requiring an out-of-State labor leader to register before speaking in advocacy of the cause of trade unionism. In Martin v. City of Struthers, 319 U.S. 141, it was broadly held that a municipality was not justified in prohibiting knocking on doors and ringing doorbells for the purpose of delivering handbills. But since the good faith and reasonableness of the regulation were placed in doubt by the fact that the city did not think it necessary also to prohibit door-to-door commercial [p541] sales, decision could be sustained on narrower ground. And compare Breard v. Alexandria, post, p. 622, decided this day.

In other cases, moreover, we have given clear indication that even when free speech is involved, we attach great significance to the determination of the legislature. Gitlow v. New York, supra; Whitney v. California, supra; American Communications Assn. v. Douds, supra; cf. Bridges v. California, 314 U.S. at 260. And see Hughes v. Superior Court, supra; International Brotherhood of Teamsters Union v. Hanke, supra.

In Gitlow v. New York, we put our respect for the legislative judgment in terms which, if they were accepted here, would make decision easy. For that case held that, when the legislature has determined that advocacy of forceful overthrow should be forbidden, a conviction may be sustained without a finding that, in the particular case, the advocacy had a close relation to a serious attempt at overthrow. We held that it was enough that the statute be a reasonable exercise of the legislative judgment, and that the defendant's conduct fall within the statute.

One of the judges below rested his affirmance on the Gitlow decision, and the defendants do not attempt to distinguish the case. They place their argument squarely on the ground that the case has been overruled by subsequent decisions. It has not been explicitly overruled. But it would be disingenuous to deny that the dissent in Gitlow has been treated with the respect usually accorded to a decision.

The result of the Gitlow decision was to send a left-wing Socialist to jail for publishing a Manifesto expressing Marxist exhortations. It requires excessive tolerance of the legislative judgment to suppose that the Gitlow publication in the circumstances could justify serious concern. [p542]

In contrast, there is ample justification for a legislative judgment that the conspiracy now before us is a substantial threat to national order and security. If the Smith Act is justified at all, it is justified precisely because it may serve to prohibit the type of conspiracy for which these defendants were convicted. The court below properly held that, as a matter of separability, the Smith Act may be limited to those situations to which it can constitutionally be applied. See 183 F.2d at 214-215. Our decision today certainly does not mean that the Smith Act can constitutionally be applied to facts like those in Gitlow v. New York. While reliance may properly be placed on the attitude of judicial self-restraint which the Gitlow decision reflects, it is not necessary to depend on the facts or the full extent of the theory of that case in order to find that the judgment of Congress, as applied to the facts of the case now before us, is not in conflict with the First Amendment.

Second. -- A survey of the relevant decisions indicates that the results which we have reached are on the whole those that would ensue from careful weighing of conflicting interests. The complex issues presented by regulation of speech in public places, by picketing, and by legislation prohibiting advocacy of crime have been resolved by scrutiny of many factors besides the imminence and gravity of the evil threatened. The matter has been well summarized by a reflective student of the Court's work.

The truth is that the "clear and present danger" test is an oversimplified judgment unless it takes account also of a number of other factors: the relative seriousness of the danger in comparison with the value of the occasion for speech or political activity; the availability of more moderate controls than those which the state has imposed, and perhaps the specific intent with which the speech or activity is launched. No matter how rapidly we utter the phrase "clear and present danger," or how [p543] closely we hyphenate the words, they are not a substitute for the weighing of values. They tend to convey a delusion of certitude when what is most certain is the complexity of the strands in the web of freedoms which the judge must dissentangle.

Freund, On Understanding the Supreme Court, 27-28.

It is a familiar experience in the law that new situations do not fit neatly into legal conceptions that arose under different circumstances to satisfy different needs. So it was when the injunction was tortured into an instrument of oppression against labor in industrial conflicts. So it is with the attempt to use the direction of thought lying behind the criterion of "clear and present danger" wholly out of the context in which it originated, and to make of it an absolute dogma and definitive measuring rod for the power of Congress to deal with assaults against security through devices other than overt physical attempts.

Bearing in mind that Mr. Justice Holmes regarded questions under the First Amendment as questions of "proximity and degree," Schenck v. United States, 249 U.S. at 52, it would be a distortion, indeed a mockery, of his reasoning to compare the "puny anonymities," 250 U.S. at 629, to which he was addressing himself in the Abrams case in 1919 or the publication that was "futile and too remote from possible consequences," 268 U.S. at 673, in the Gitlow case in 1925 with the setting of events in this case in 1950.

It does an ill service to the author of the most quoted judicial phrases regarding freedom of speech, to make him the victim of a tendency which he fought all his life, whereby phrases are made to do service for critical analysis by being turned into dogma.

It is one of the misfortunes of the law that ideas become encysted in phrases, and thereafter for a long time cease to provoke further analysis.

Holmes, J., dissenting, in Hyde v. United [p544] States, 225 U.S. 347, 384, at 391.

The phrase "clear and present danger," in its origin,

served to indicate the importance of freedom of speech to a free society, but also to emphasize that its exercise must be compatible with the preservation of other freedoms essential to a democracy and guaranteed by our Constitution.

Pennekamp v. Florida, 328 U.S. 331, 350, 352-353 (concurring). It were far better that the phrase be abandoned than that it be sounded once more to hide from the believers in an absolute right of free speech the plain fact that the interest in speech, profoundly important as it is, is no more conclusive in judicial review than other attributes of democracy or than a determination of the people's representatives that a measure is necessary to assure the safety of government itself.

Third. -- Not every type of speech occupies the same position on the scale of values. There is no substantial public interest in permitting certain kinds of utterances:

the lewd and obscene, the profane, the libelous, and the insulting or "fighting" words -- those which, by their very utterance, inflict injury or tend to incite an immediate breach of the peace.

Chaplinsky v. New Hampshire, 315 U.S. 568, 572. We have frequently indicated that the interest in protecting speech depends on the circumstances of the occasion. See cases collected in Niemotko v. Maryland, 340 U.S. at 275-283. It is pertinent to the decision before us to consider where on the scale of values we have in the past placed the type of speech now claiming constitutional immunity.

The defendants have been convicted of conspiring to organize a party of persons who advocate the overthrow of the Government by force and violence. The jury has found that the object of the conspiracy is advocacy as "a rule or principle of action," "by language reasonably and ordinarily calculated to incite persons to such action," [p545] and with the intent to cause the overthrow "as speedily as circumstances would permit."

On any scale of values which we have hitherto recognized, speech of this sort ranks low.

Throughout our decisions, there has recurred a distinction between the statement of an idea which may prompt its hearers to take unlawful action and advocacy that such action be taken. The distinction has its root in the conception of the common law, supported by principles of morality, that a person who procures another to do an act is responsible for that act as though he had done it himself. This principle was extended in Fox v. Washington, supra, to words directed to the public generally which would constitute an incitement were they directed to an individual. It was adapted in Schenck v. United States, supra, into a rule of evidence designed to restrict application of the Espionage Act. It was relied on by the Court in Gitlow v. New York, supra. The distinction has been repeated in many of the decisions in which we have upheld the claims of speech. We frequently have distinguished protected forms of expression from statements which "incite to violence and crime and threaten the overthrow of organized government by unlawful means." Stromberg v. California, 283 U.S. at 369. See also Near v. Minnesota, 283 U.S. at 716; De Jonge v. Oregon, 299 U.S. at 365; Cantwell v. Connecticut, 310 U.S. 296, 308; Taylor v. Mississippi, 319 U.S. at 589.

It is true that there is no divining rod by which we may locate "advocacy." Exposition of ideas readily merges into advocacy. The same Justice who gave currency to application of the incitement doctrine in this field dissented four times from what he thought was its misapplication. As he said in the Gitlow dissent, "Every idea is an incitement." 268 U.S. at 673. Even though advocacy of overthrow deserves little protection, we should hesitate to prohibit it if we thereby inhibit the [p546] interchange of rational ideas so essential to representative government and free society.

But there is underlying validity in the distinction between advocacy and the interchange of ideas, and we do not discard a useful tool because it may be misused. That such a distinction could be used unreasonably by those in power against hostile or unorthodox views does not negate the fact that it may be used reasonably against an organization wielding the power of the centrally controlled international Communist movement. The object of the conspiracy before us is so clear that the chance of error in saying that the defendants conspired to advocate, rather than to express ideas is slight. MR. JUSTICE DOUGLAS quite properly points out that the conspiracy before us is not a conspiracy to overthrow the Government. But it would be equally wrong to treat it as a seminar in political theory.

III[edit]

These general considerations underlie decision of the case before us.

On the one hand is the interest in security. The Communist Party was not designed by these defendants as an ordinary political party. For the circumstances of its organization, its aims and methods, and the relation of the defendants to its organization and aims, we are concluded by the jury's verdict. The jury found that the Party rejects the basic premise of our political system -- that change is to be brought about by nonviolent constitutional process. The jury found that the Party advocates the theory that there is a duty and necessity to overthrow the Government by force and violence. It found that the Party entertains and promotes this view not as a prophetic insight or as a bit of unworldly speculation, [p547] but as a program for winning adherents and as a policy to be translated into action.

In finding that the defendants violated the statute, we may not treat as established fact that the Communist Party in this country is of significant size, well organized, well disciplined, conditioned to embark on unlawful activity when given the command. But, in determining whether application of the statute to the defendants is within the constitutional powers of Congress, we are not limited to the facts found by the jury. We must view such a question in the light of whatever is relevant to a legislative judgment. We may take judicial notice that the Communist doctrines which these defendants have conspired to advocate are in the ascendency in powerful nations who cannot be acquitted of unfriendliness to the institutions of this country. We may take account of evidence brought forward at this trial and elsewhere, much of which has long been common knowledge. In sum, it would amply justify a legislature in concluding that recruitment of additional members for the Party would create a substantial danger to national security.

In 1947, it has been reliably reported, at least 60,000 members were enrolled in the Party. [11] Evidence was introduced in this case that the membership was organized in small units, linked by an intricate chain of command, and protected by elaborate precautions designed to prevent disclosure of individual identity. There are no reliable data tracing acts of sabotage or espionage directly to these defendants. But a Canadian Royal Commission appointed in 1946 to investigate espionage reported that it was "overwhelmingly established" that [p548] "the Communist movement was the principal base within which the espionage network was recruited." [12] The most notorious spy in recent history was led into the service of the Soviet Union through Communist indoctrination. [13] Evidence supports the conclusion that members of the Party seek and occupy positions of importance in political and labor organizations. [14] Congress was not barred by the Constitution from believing that indifference to such experience would be an exercise not of freedom, but of irresponsibility.

On the other hand is the interest in free speech. The right to exert all governmental powers in aid of maintaining our institutions and resisting their physical overthrow does not include intolerance of opinions and speech that cannot do harm although opposed and perhaps alien to dominant, traditional opinion. The treatment of its [p549] minorities, especially their legal position, is among the most searching tests of the level of civilization attained by a society. It is better for those who have almost unlimited power of government in their hands to err on the side of freedom. We have enjoyed so much freedom for so long that we are perhaps in danger of forgetting how much blood it cost to establish the Bill of Rights.

Of course, no government can recognize a "right" of revolution, or a "right" to incite revolution if the incitement has no other purpose or effect. But speech is seldom restricted to a single purpose, and its effects may be manifold. A public interest is not wanting in granting freedom to speak their minds even to those who advocate the overthrow of the Government by force. For, as the evidence in this case abundantly illustrates, coupled with such advocacy is criticism of defects in our society. Criticism is the spur to reform, and Burke's admonition that a healthy society must reform in order to conserve has not lost its force. Astute observers have remarked that one of the characteristics of the American Republic is indifference to fundamental criticism. Bryce, The American Commonwealth, c. 84. It is a commonplace that there may be a grain of truth in the most uncouth doctrine, however false and repellent the balance may be. Suppressing advocates of overthrow inevitably will also silence critics who do not advocate overthrow but fear that their criticism may be so construed. No matter how clear we may be that the defendants now before us are preparing to overthrow our Government at the propitious moment, it is self-delusion to think that we can punish them for their advocacy without adding to the risks run by loyal citizens who honestly believe in some of the reforms these defendants advance. It is a sobering fact that, in sustaining the convictions before us, we can hardly escape restriction on the interchange of ideas. [p550]

We must not overlook the value of that interchange. Freedom of expression is the well spring of our civilization -- the civilization we seek to maintain and further by recognizing the right of Congress to put some limitation upon expression. Such are the paradoxes of life. For social development of trial and error, the fullest possible opportunity for the free play of the human mind is an indispensable prerequisite. The history of civilization is in considerable measure the displacement of error which once held sway as official truth by beliefs which in turn have yielded to other truths. Therefore, the liberty of man to search for truth ought not to be fettered, no matter what orthodoxies he may challenge. Liberty of thought soon shrivels without freedom of expression. Nor can truth be pursued in an atmosphere hostile to the endeavor or under dangers which are hazarded only by heroes.

The interest, which [the First Amendment] guards, and which gives it its importance, presupposes that there are no orthodoxies -- religious, political, economic, or scientific -- which are immune from debate and dispute. Back of that is the assumption -- itself an orthodoxy, and the one permissible exception -- that truth will be most likely to emerge, if no limitations are imposed upon utterances that can with any plausibility be regarded as efforts to present grounds for accepting or rejecting propositions whose truth the utterer asserts, or denies.

International Brotherhood of Electrical Workers v. Labor Board, 181 F.2d 34, 40. In the last analysis, it is on the validity of this faith that our national security is staked.

It is not for us to decide how we would adjust the clash of interests which this case presents were the primary responsibility for reconciling it ours. Congress has determined that the danger created by advocacy of overthrow justifies the ensuing restriction on freedom of speech. The determination was made after due deliberation, and [p551] the seriousness of the congressional purpose is attested by the volume of legislation passed to effectuate the same ends. [15]

Can we then say that the judgment Congress exercised was denied it by the Constitution? Can we establish a constitutional doctrine which forbids the elected representatives of the people to make this choice? Can we hold that the First Amendment deprives Congress of what it deemed necessary for the Government's protection?

To make validity of legislation depend on judicial reading of events still in the womb of time a forecast, that is, of the outcome of forces, at best, appreciated only with knowledge of the topmost secrets of nations -- is to charge the judiciary with duties beyond its equipment. We do not expect courts to pronounce historic verdicts on bygone events. Even historians have conflicting views to this day on the origins and conduct of the French Revolution, or, for that matter, varying interpretations of "the glorious Revolution" of 1688. It is as absurd to be confident that we can measure the present clash of forces and [p552] their outcome as to ask us to read history still enveloped in clouds of controversy.

In the light of their experience, the Framers of the Constitution chose to keep the judiciary dissociated from direct participation in the legislative process. In asserting the power to pass on the constitutionality of legislation, Marshall and his Court expressed the purposes of the Founders. See Charles A. Beard, The Supreme Court and the Constitution. But the extent to which the exercise of this power would interpenetrate matters of policy could hardly have been foreseen by the most prescient. The distinction which the Founders drew between the Court's duty to pass on the power of Congress and its complementary duty not to enter directly the domain of policy is fundamental. But, in its actual operation, it is rather subtle, certainly to the common understanding. Our duty to abstain from confounding policy with constitutionality demands perceptive humility as well as self-restraint in not declaring unconstitutional what in a judge's private judgment is deemed unwise and even dangerous.

Even when moving strictly within the limits of constitutional adjudication, judges are concerned with issues that may be said to involve vital finalities. The too easy transition from disapproval of what is undesirable to condemnation as unconstitutional has led some of the wisest judges to question the wisdom of our scheme in lodging such authority in courts. But it is relevant to remind that, in sustaining the power of Congress in a case like this, nothing irrevocable is done. The democratic process, at all events, is not impaired or restricted. Power and responsibility remain with the people, and, immediately, with their representatives. All the Court says is that Congress was not forbidden by the Constitution to pass this enactment and that a prosecution under it may be brought against a conspiracy such as the one before us. [p553]

IV[edit]

The wisdom of the assumptions underlying the legislation and prosecution is another matter. In finding that Congress has acted within its power, a judge does not remotely imply that he favors the implications that lie beneath the legal issues. Considerations there enter which go beyond the criteria that are binding upon judges within the narrow confines of their legitimate authority. The legislation we are here considering is but a truncated aspect of a deeper issue. For me, it has been most illuminatingly expressed by one in whom responsibility and experience have fructified native insight, the Director-General of the British Broadcasting Corporation:

We have to face up to the fact that there are powerful forces in the world today misusing the privileges of liberty in order to destroy her. The question must be asked, however, whether suppression of information or opinion is the true defense. We may have come a long way from Mill's famous dictum that:

If all mankind minus one were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person than he, if he had the power, would be justified in silencing mankind,

but Mill's reminders from history as to what has happened when suppression was most virulently exercised ought to warn us that no debate is ever permanently won by shutting one's ears or by even the most Draconian policy of silencing opponents. The debate must be won . And it must be won with full information. Where there are lies, they must be shown for what they are. Where there are errors, they must be refuted. It would be a major defeat if the enemies of democracy forced us to abandon our faith in the power of informed discussion, and so brought us down [p554] to their own level. Mankind is so constituted, moreover, that, if, where expression and discussion are concerned, the enemies of liberty are met with a denial of liberty, many men of goodwill will come to suspect there is something in the proscribed doctrine after all. Erroneous doctrines thrive on being expunged. They die if exposed.

Sir William Haley, What Standards for Broadcasting? Measure, Vol. I, No. 3, Summer 1950, pp. 211-212.

In the context of this deeper struggle, another voice has indicated the limitations of what we decide today. No one is better equipped than George F. Kennan to speak on the meaning of the menace of Communism and the spirit in which we should meet it.

If our handling of the problem of Communist influence in our midst is not carefully moderated -- if we permit it, that is, to become an emotional preoccupation and to blind us to the more important positive tasks before us -- we can do a damage to our national purpose beyond comparison greater than anything that threatens us today from the Communist side. The American Communist party is today, by and large, an external danger. It represents a tiny minority in our country, it has no real contact with the feelings of the mass of our people, and its position as the agency of a hostile foreign power is clearly recognized by the overwhelming mass of our citizens.
But the subjective emotional stresses and temptations to which we are exposed in our attempt to deal with this domestic problem are not an external danger: they represent a danger within ourselves -- a danger that something may occur in our own minds and souls which will make us no longer like the persons by whose efforts this republic was founded and held together, but rather like the representatives [p555] of that very power we are trying to combat: intolerant, secretive, suspicious, cruel, and terrified of internal dissension because we have lost our own belief in ourselves and in the power of our ideals. The worst thing that our Communists could do to us, and the thing we have most to fear from their activities, is that we should become like them.
That our country is beset with external dangers I readily concede. But these dangers, at their worst, are ones of physical destruction, of the disruption of our world security, of expense and inconvenience and sacrifice. These are serious, and sometimes terrible things, but they are all things that we can take and still remain Americans.
The internal danger is of a different order. America is not just territory and people. There is lots of territory elsewhere, and there are lots of people; but it does not add up to America. America is something in our minds and our habits of outlook which causes us to believe in certain things and to behave in certain ways, and by which, in its totality, we hold ourselves distinguished from others. If that, once goes there will be no America to defend. And that can go too easily if we yield to the primitive human instinct to escape from our frustrations into the realms of mass emotion and hatred and to find scapegoats for our difficulties in individual fellow-citizens who are, or have at one time been, disoriented or confused.

George F. Kennan, Where Do You Stand on Communism? New York Times Magazine, May 27, 1951, pp. 7, 53, 55.

Civil liberties draw, at best, only limited strength from legal guaranties. Preoccupation by our people with the constitutionality, instead of with the wisdom, of legislation or of executive action is preoccupation with a false value. Even those who would most freely use the judicial [p556] brake on the democratic process by invalidating legislation that goes deeply against their grain, acknowledge, at least by paying lip service, that constitutionality does not exact a sense of proportion or the sanity of humor or an absence of fear. Focusing attention on constitutionality tends to make constitutionality synonymous with wisdom. When legislation touches freedom of thought and freedom of speech, such a tendency is a formidable enemy of the free spirit. Much that should be rejected as illiberal, because repressive and envenoming, may well be not unconstitutional. The ultimate reliance for the deepest needs of civilization must be found outside their vindication in courts of law; apart from all else, judges, howsoever they may conscientiously seek to discipline themselves against it, unconsciously are too apt to be moved by the deep undercurrents of public feeling. A persistent, positive translation of the liberating faith into the feelings and thoughts and actions of men and women is the real protection against attempts to strait-jacket the human mind. Such temptations will have their way, if fear and hatred are not exorcized. The mark of a truly civilized man is confidence in the strength and security derived from the inquiring mind. We may be grateful for such honest comforts as it supports, but we must be unafraid of its incertitudes. Without open minds, there can be no open society. And if society be not open, the spirit of man is mutilated, and becomes enslaved.

APPENDIX TO OPINION OF MR. JUSTICE FRANKFURTER.[edit]

Opinions responsible for the view that speech could not constitutionally be restricted unless there would result from it an imminent -- i.e., close at hand -- substantive evil.

1. Thornhill v. Alabama, 310 U.S. 88, 104-105 (State statute prohibiting picketing held invalid):

. . . Every [p557] expression of opinion on matters that are important has the potentiality of inducing action in the interests of one rather than another group in society. But the group in power at any moment may not impose penal sanctions on peaceful and truthful discussion of matters of public interest merely on a showing that others may thereby be persuaded to take action inconsistent with its interests. Abridgment of the liberty of such discussion can be justified only where the clear danger of substantive evils arises under circumstances affording no opportunity to test the merits of ideas by competition for acceptance in the market of public opinion. . . .
. . . [N]o clear and present danger of destruction of life or property, or invasion of the right of privacy, or breach of the peace can be thought to be inherent in the activities of every person who approaches the premises of an employer and publicizes the facts of a labor dispute involving the latter.

2. Bridges v. California, 314 U.S. 252, 262-263 (convictions for contempt of court reversed):

. . . [T]he "clear and present danger" language of the Schenck case has afforded practical guidance in a great variety of cases in which the scope of constitutional protections of freedom of expression was in issue. It has been utilized by either a majority or minority of this Court in passing upon the constitutionality of convictions under espionage acts, Schenck v. United States, supra, [[[249 U.S. 47]]]; Abrams v. United States, 250 U.S. 616; under a criminal syndicalism act, Whitney v. California, supra, [[[274 U.S. 357]]]; under an "anti-insurrection" act, Herndon v. Lowry, supra, [[[301 U.S. 242]]], and for breach of the peace at common law, Cantwell v. Connecticut, supra, [[[310 U.S. 296]]]. And, very recently, we have also suggested that "clear and present danger" is an appropriate guide in determining the constitutionality of restrictions upon expression where the substantive evil sought to be prevented [p558] by the restriction is "destruction of life or property, or invasion of the right of privacy." Thornhill v. Alabama, 310 U.S. 88, 105.
What finally emerges from the "clear and present danger" cases is a working principle that the substantive evil must be extremely serious and the degree of imminence extremely high before utterances can be punished. Those cases do not purport to mark the furthermost constitutional boundaries of protected expression, nor do we here. They do no more than recognize a minimum compulsion of the Bill of Rights. For the First Amendment does not speak equivocally. It prohibits any law "abridging the freedom of speech, or of the press." It must be taken as a command of the broadest scope that explicit language, read in the context of a liberty-loving society, will allow.

3. West Virginia Board of Education v. Barnette, 319 U.S. 624, 639 (flag salute requirement for school children held invalid):

In weighing arguments of the parties, it is important to distinguish between the due process clause of the Fourteenth Amendment as an instrument for transmitting the principles of the First Amendment and those cases in which it is applied for its own sake. The test of legislation which collides with the Fourteenth Amendment, because it also collides with the principles of the First, is much more definite than the test when only the Fourteenth is involved. Much of the vagueness of the due process clause disappears when the specific prohibitions of the First become its standard. The right of a State to regulate, for example, a public utility may well include, so far as the due process test is concerned, power to impose all of the restrictions which a legislature may have a "rational basis" for adopting. But freedoms of speech and of press, of assembly, and of worship may not be infringed on such slender grounds. They are susceptible [p559] of restriction only to prevent grave and immediate danger to interests which the State may lawfully protect. It is important to note that, while it is the Fourteenth Amendment which bears directly upon the State, it is the more specific limiting principles of the First Amendment that finally govern this case.

4. Thomas v. Collins, 323 U.S. 516, 529-530 (State statute requiring registration of labor organizers held invalid as applied):

The case confronts us again with the duty our system places on this Court to say where the individual's freedom ends and the State's power begins. Choice on that border, now as always delicate, is perhaps more so where the usual presumption supporting legislation is balanced by the preferred place given in our scheme to the great, the indispensable democratic freedoms secured by the First Amendment. Cf. Schneider v. State, 308 U.S. 147; Cantwell v. Connecticut, 310 U.S. 296; Prince v. Massachusetts, 321 U.S. 158. That priority gives these liberties a sanctity and a sanction not permitting dubious intrusions. And it is the character of the right, not of the limitation, which determines what standard governs the choice. Compare United States v. Carolene Products Co., 304 U.S. 144, 152-153.
For these reasons, any attempt to restrict those liberties must be justified by clear public interest, threatened not doubtfully or remotely, but by clear and present danger. The rational connection between the remedy provided and the evil to be curbed, which in other contexts might support legislation against attack on due process grounds, will not suffice. These rights rest on firmer foundation. Accordingly, whatever occasion would restrain orderly discussion and persuasion, at appropriate time and place, must have clear support in public danger, actual or impending. Only the gravest abuses, endangering paramount interests, give occasion for permissible limitation. [p560]

5. Craig v. Harney, 331 U.S. 367, 376 (conviction for contempt of court reversed):

The fires which [the language] kindles must constitute an imminent, not merely a likely, threat to the administration of justice. The danger must not be remote or even probable; it must immediately imperil.

6. Giboney v. Empire Storage Co., 336 U.S. 490, 503 (injunction against picketing upheld):

. . . There was clear danger, imminent and immediate, that, unless restrained, appellants would succeed in making [the State's policy against restraints of trade] a dead letter insofar as purchases by nonunion men were concerned. . . .

7. Terminiello v. Chicago, 337 U.S. 1, 4-5 (conviction for disorderly conduct reversed):

Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech, though not absolute, Chaplinsky v. New Hampshire, supra, [[[315 U.S. 568]],] 571-572, is nevertheless protected against censorship or punishment unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest. See Bridges v. California, 314 U.S. 252, 262; Craig v. Harney, 331 U.S. 367, 373. There is no room under our Constitution for a more restrictive view. For the alternative would lead to standardization of ideas either by legislatures, courts, or dominant political or community groups.

8. American Communications Assn. v. Douds, 339 U.S. 382, 396, 412 ("Non-Communist affidavit" provision of Taft-Hartley Act upheld):

Speech may be fought with speech. Falsehoods and fallacies must be exposed, not suppressed, unless there is not sufficient time to avert the evil consequences of noxious doctrine by argument and education. That is the command of the First Amendment.

And again,

[The First] Amendment requires [p561] that one be permitted to believe what he will. It requires that one be permitted to advocate what he will unless there is a clear and present danger that a substantial public evil will result therefrom.

Notes[edit]

^ . Mass.Const., 1780, Part I, Art. XVI. See Duniway, Freedom of the Press in Massachusetts, 144-146.

^ . Pa.Const., 1790, Art. IX, § 7; Del.Const., 1792, Art. I, § 5.

^ . The General Assembly of Virginia passed a statute on December 26, 1792, directed at establishment of

any government separate from, or independent of the government of Virginia, within the limits thereof, unless by act of the legislature of this commonwealth for that purpose first obtained.

The statute provided that

EVERY person . . . who shall by writing or advised speaking, endeavour to instigate the people of this commonwealth to erect or establish such government without such assent as aforesaid, shall be adjudged guilty of a high crime and misdemeanor. . . .

Va.Code, 1803, c. C341VI.

^ . In a letter to Abigail Adams, dated September 11, 1804, Jefferson said with reference to the Sedition Act:

Nor does the opinion of the unconstitutionality and consequent nullity of that law remove all restraint from the overwhelming torrent of slander which is confounding all vice and virtue, all truth and falsehood in the US. The power to do that is fully possessed by the several state legislatures. It was reserved to them, and was denied to the general government, by the constitution according to our construction of it. While we deny that Congress have a right to controul the freedom of the press, we have ever asserted the right of the states, and their exclusive right, to do so.

The letter will be published in a forthcoming volume of The Papers of Thomas Jefferson (Boyd ed.), to which I am indebted for its reproduction here in its exact form.

The Sedition Act of July 14, 1798, was directed at two types of conduct. Section 1 made it a criminal offense to conspire "to impede the operation of any law of the United States," and to "counsel, advise or attempt to procure any insurrection, riot, unlawful assembly, or combination." Section 2 provided:

That if any person shall write, print, utter or publish, or shall cause or procure to be written, printed, uttered or published, or shall knowingly and willingly assist or aid in writing, printing, uttering or publishing any false, scandalous and malicious writing or writings against the government of the United States, or either house of the Congress of the United States, or the President of the United States, with intent to defame the said government, or either house of the said Congress, or the said President, or to bring them, or either of them, into contempt or disrepute; or to excite against them, or either or any of them, the hatred of the good people of the United States, or to stir up sedition within the United States, or to excite any unlawful combinations therein, for opposing or resisting any law of the United States, or any act of the President of the United States, done in pursuance of any such law, or of the powers in him vested by the constitution of the United States, or to resist, oppose, or defeat any such law or act, or to aid, encourage or abet any hostile designs of any foreign nation against the United States, their people or government, then such person, being thereof convicted before any court of the United States having jurisdiction thereof, shall be punished by a fine not exceeding two thousand dollars, and by imprisonment not exceeding two years.

1 Stat. 596-597.

No substantial objection was raised to § 1 of the Act. The argument against the validity of § 2 is stated most fully in the Virginia Report of 1799-1800. That Report, prepared for the House of Delegates by a committee of which Madison was chairman, attempted to establish that the power to regulate speech was not delegated to the Federal Government by the Constitution, and that the First Amendment had prohibited the National Government from exercising the power. In reply, it was urged that power to restrict seditious writing was implicit in the acknowledged power of the Federal Government to prohibit seditious acts, and that the liberty of the press did not extend to the sort of speech restricted by the Act. See the Report of the Committee of the House of Representatives to which were referred memorials from the States, H.R.Rep. No. 110, 5th Cong., 3d Sess., published in American State Papers, Misc. Vol. 1, p. 181. For an extensive contemporary account of the controversy, see St. George Tucker's 1803 edition of Blackstone's Commentaries, Appendix to Vol. First, Part Second, Note G.

^ . Professor Alexander Meiklejohn is a leading exponent of the absolutist interpretation of the First Amendment. Recognizing that certain forms of speech require regulation, he excludes those forms of expression entirely from the protection accorded by the Amendment.

The constitutional status of a merchant advertising his wares, of a paid lobbyist fighting for the advantage of his client, is utterly different from that of a citizen who is planning for the general welfare.

Meiklejohn, Free Speech, 39.

The radio as it now operates among us is not free. Nor is it entitled to the protection of the First Amendment. It is not engaged in the task of enlarging and enriching human communication. It is engaged in making money.

Id. at 104. Professor Meiklejohn even suggests that scholarship may now require such subvention and control that it no longer is entitled to protection by the First Amendment. See id. at 99-100. Professor Chafee, in his review of the Meiklejohn book, 62 Harv.L.Rev. 891, has subjected this position to trenchant comment.

^ . In Hartzel v. United States, 322 U.S. 680, 687, the Court reversed a conviction for willfully causing insubordination in the military forces on the ground that the intent required by the statute was not shown. It added that there was a second element necessary to conviction,

consisting of a clear and present danger that the activities in question will bring about the substantive evils which Congress has a right to prevent. Schenck v. United States, 249 U.S. 47. Both elements must be proved by the Government beyond a reasonable doubt.

Other passages responsible for attributing to the Court the principle that imminence of the apprehended evil is necessary to conviction in free speech cases are collected in an Appendix to this opinion, post, p. 556.

^ . No useful purpose would be served by considering here decisions in which the Court treated the challenged regulation as though it imposed no real restraint on speech or on the press. E.g., Associated Press v. Labor Board, 301 U.S. 103; Valentine v. Chrestensen, 316 U.S. 52; Railway Express Agency v. New York, 336 U.S. 106; Lewis Publishing Co. v. Morgan, 229 U.S. 288. We recognized that restrictions on speech were involved in United States ex rel. Milwaukee Publishing Co. v. Burleson, 255 U.S. 407, and Gilbert v. Minnesota, 254 U.S. 325; but the decisions raised issues so different from those presented here that they too need not be considered in detail. Our decisions in Stromberg v. California, 283 U.S. 359, and Winters v. New York, 333 U.S. 507, turned on the indefiniteness of the statutes.

^ . The Taft-Hartley Act also requires that an officer of a union using the services of the National Labor Relations Board take oath that he

does not believe in, and is not a member of or supports any organization that believes in or teaches, the overthrow of the United States Government by force or by any illegal or unconstitutional methods.

The Court divided on the validity of this requirement. Test oaths raise such special problems that decisions on their validity are not directly helpful here. See West Virginia Board of Education v. Barnette, 319 U.S. 624.

^ . Burns v. United States, 274 U.S. 328, adds nothing to the decision in Whitney v. California.

^ . In Herndon v. Georgia, 295 U.S. 441, the opinion of the Court was concerned solely with a question of procedure. Mr. Justice Brandeis, Mr. Justice Stone, and Mr. Justice Cardozo, however, thought that the problem of Gitlow v. New York was raised. See 295 U.S. at 446.

^ . See the testimony of the Director of the Federal Bureau of Investigation. Hearings before the House Committee on Un-American Activities, on H.R. 1884 and H.R. 2122, 80th Cong., 1st Sess., Part 2, p. 37.

^ . Report of the Royal Commission to Investigate Communication of Secret and Confidential Information to Agents of a Foreign Power, June 27, 1946, p. 44. There appears to be little reliable evidence demonstrating directly that the Communist Party in this country has recruited persons willing to engage in espionage or other unlawful activity on behalf of the Soviet Union. The defection of a Soviet diplomatic employee, however, led to a careful investigation of an espionage network in Canada, and has disclosed the effectiveness of the Canadian Communist Party in conditioning its members to disclose to Soviet agents vital information of a secret character. According to the Report of the Royal Commission investigating the network, conspiratorial characteristics of the Party similar to those shown in the evidence now before us were instrumental in developing the necessary motivation to cooperate in the espionage. See pp. 43-83 of the Report.

^ . The Communist background of Dr. Klaus Fuchs was brought out in the proceedings against him. See The [London] Times, Mar. 2, 1950, p.2, col. 6.

^ . See American Communications Assn. v. Douds, 339 U.S. 382. Former Senator Robert M. La Follette, Jr., has reported his experience with infiltration of Communist sympathizers into congressional committee staffs. Collier's, Feb. 8, 1947, p. 22.

^ . Immigration laws require, for instance, exclusion and deportation of aliens who advocate the overthrow of the Government by force and violence, and declare ineligible for naturalization aliens who are members of organizations so advocating. Act of Feb. 5, 1917, § 19, 39 Stat. 889, 8 U.S.C. § 155; Act of Oct. 16, 1918, 40 Stat. 1012, 8 U.S.C. § 137; Act of Oct. 14, 1940, § 305, 54 Stat. 1141, 8 U.S.C. § 705. The Hatch Act prohibits employment by any Government agency of members of organizations advocating overthrow of "our constitutional form of government." Act of Aug. 2, 1939, § 9A, 53 Stat. 1148, 5 U.S.C. (Supp. III) § 118j. The Voorhis Act of Oct. 17, 1940, was passed to require registration of organizations subject to foreign control which engage in political activity. 54 Stat. 1201, 18 U.S.C. § 2386. The Taft-Hartley Act contains a section designed to exclude Communists from positions of leadership in labor organizations. Act of June 23, 1947, § 9(h), 61 Stat. 146, 29 U.S.C. (Supp. III) § 159(h). And, most recently, the McCarran Act requires registration of "Communist action" and "Communist front" organizations. Act of Sept. 23, 1950, § 7, 64 Stat. 987, 993.