Eugene Dennis and other high officials of the Communist party had been convicted of violating the ALIEN REGISTRATION ACT of 1940 (the Smith Act) by conspiring to advocate overthrow of the government by force and violence. LEARNED HAND, writing the Court of Appeals opinion upholding the constitutionality of the act and of the conviction, was caught in a dilemma. He was bound by the Supreme Court's CLEAR AND PRESENT DANGER rule, and the government had presented no evidence that Dennis's activities had created a present danger of communist revolution in the United States. Hand, however, believed that courts had limited authority to enforce the FIRST AMENDMENT. His solution was to restate the danger test as: "whether the gravity of the evil, discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger." Because Dennis's conspiracy to advocate was linked to a grave evil, communist revolution, he could be punished despite the remote danger of communist revolution. Hand's restatement allowed a court to pay lip service to the danger rule while upholding nearly any government infringement on speech. If the ultimate threat posed by the speech is great enough, the speaker may be punished even though there is little or no immediate threat.
The Supreme Court upheld Dennis's conviction with only Justices HUGO L. BLACK and WILLIAM O. DOUGLAS dissenting. Chief Justice FRED M. VINSON ' S PLURALITY OPINION adopted Hand's restatement of the danger rule. At least where an organized subversive group was involved, speakers might be punished so long as they intended to bring about overthrow "as speedily as circumstances would permit."
Justice FELIX FRANKFURTER'S concurrence openly substituted a BALANCING TEST for the danger rule, arguing that the constitutionality of speech limitations ultimately depended on whether the government had a weighty enough interest. Congress, he said, surely was entitled to conclude that the interest in national security outweighed the speech interests of those advocating violent overthrow.
Decided at the height of the Cold War campaign against communists, Dennis allied the Court with anticommunist sentiment. No statute would seem more flatly violative on its face of the First Amendment than one that made "advocacy" a crime. Indeed, in YATES V. UNITED STATES (1957) the Court later sought to distinguish between active urging or incitement to revolution, which...