Supreme Court: Dissent in the 1950's

In the 1950s, the US Supreme Court played a major role in upholding the excesses of Red Scare repression but also helped establish the right to dissent.  Here's how.

Dennis v. United States  

In 1951 a case involving 11 prominent members of the tiny Communist Party of the United States who had been convicted under the Smith Act reached the Supreme Court.  In spite of the fact that the evidence presented during the trial was hearsay, much of it from paid government informers, the court ruled 6-1 in Dennis v. United States to uphold the convictions.   It stated that the Smith Act was constitutionally applied in this particular case because the Communist Party was working to achieve the overthrow of the existing government.

Immediately after the trial, half of the Dennis case lawyers were arrested.  They were sent to prison for refusing to agree that Communist Party members and sympathizers should be publicly named. 

In the words of Supreme Court Chief Justice Fred Vinson:

"That it is within the power of the Congress to protect the Government of the United States from armed rebellion is a proposition which requires little discussion.  Whatever theoretical merit there may be to the argument that there is a 'right' to rebellion against dictatorial governments is without force where the existing structure of the government provides for peaceful and orderly change....Overthrow of the Government by force and violence is certainly a substantial enough interest for the Government to limit speech."

In a concurring opinion, Justice Felix Frankfurter argued that the threat to national security had to be balanced against the individual's right to freedom of expression: this became known as the "balancing doctrine."

Justice William O. Douglas dissented from the majority opinion.  He wrote:

"Full and free discussion even of ideas we hate encourages the testing of our own prejudices and preconceptions.  Free and full discussion keeps a society from becoming stagnant and unprepared for the stresses and strains that work to tear all civilizations apart."

Justice Douglas added that there was no evidence that the defendants were teaching terror, sabotage and other forms of seditious conduct.  They were simply giving instructions in the doctrines of Marxism-Leninism.

The majority opinion in the Dennis case made ALL Communist Party activity – and by inference, all radical activity – a "conspiracy" exempt from First Amendment protections.  "Conspiracy" could mean anything, and be found anywhere – in the thoughts and activities of teachers, film-makers, actors, writers and government officials. 

In all, 141 people were indicted under the Smith Act. Thousands of others were blacklisted or imprisoned.  Many were deported or left the country to avoid arrest.

Yates v. United States

In the mid 1950s, the country began to recoil from the excesses of the Red Scare and McCarthyism.  A change in the national mood – and a change in the membership of the Supreme Court – produced a sequel to the Dennis case that strengthened the protection given unpopular political speech.

In the 1957 case of Yates v. United States, the Supreme Court reversed the convictions of certain Communist Party officials who had been condemned under the Smith Act.  The justices now declared that an individual could advocate the abstract doctrine of revolution as a theoretical matter, and be protected by the First Amendment.  In order to convict, the prosecution had to prove that the individual was guilty of inciting others to a specific action.

Under this reasoning, simply teaching Marxism-Leninism was not longer a crime.  In the word of Justice Harlan, "The essential distinction is that those to whom the advocacy is addressed must be urged to do something now or in the future, rather than merely to believe in something."

The court still had some way to go before a majority of the justices accepted the "clear and present danger" standard which had been articulated by Justice Oliver Wendell Holmes in his dissent in the Abrams case during the first Red Scare (see chapter 10).  But by the late 1950s it was moving in that direction. 

In the 1969 case of Brandenburg v. Ohio it completed the journey.  The justices unanimously ruled in this case involving a Ku Klux Klan leader in Ohio that speech advocating the use of force was protected "except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such an action."

In other words, for speech to be illegal it had to be at the point of producing lawless action.  Otherwise it was protected by the First Amendment, no matter how unpopular it might be to government officials and the general public.