U.S. Supreme Court Dennis v. United States, 341
U.S. 494 (1951) Dennis v. United
States No. 336 Argued December 4,
1950 Decided June 4, 1951 341
U.S. 494 CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE SECOND
CIRCUIT Syllabus 1. As construed and applied in this case, §§ 2(a)(1), 2(a)(3)
and 3 of the Smith Act, 54 Stat. 671, making it a crime for any
person knowingly or willfully to advocate the overthrow or
destruction of the Government of the United States by force or
violence, to organize or help to organize any group which does so,
or to conspire to do so, do not violate the First Amendment or
other provisions of the Bill of Rights and do not violate the First
or Fifth Amendments because of indefiniteness. Pp. 341 U. S.
495 -499, 341 U. S.
517 .

															2. Petitioners, leaders of the Communist Party in this country,
were indicted in a federal district court under § 3 of the Smith
Act for willfully and knowingly conspiring (1) to organize as the
Communist Party a group of persons to teach and advocate the
overthrow and destruction of the Government of the United States by
force and violence, and (2) knowingly and willfully to advocate and
teach the duty and necessity of overthrowing and destroying the
Government of the United States by force and violence. The trial
judge instructed the jury that they could not convict unless they
found that petitioners intended to overthrow the Government "as
speedily as circumstances would permit," but that, if they so
found, then, as a matter of law, there was sufficient danger of a
substantive evil that Congress has a right to prevent to justify
application of the statute under the First Amendment. Petitioners
were convicted, and the convictions were sustained by the Court of
Appeals. This Court granted certiorari, limited to the questions:
(1) Whether either § 2 or § 3 of the Smith Act, inherently or as
construed and applied in the instant case, violates the First
Amendment and other provisions of the Bill of Rights, and (2)
whether either § 2 or § 3, inherently or as construed and applied
in the instant case, violates the First and Fifth Amendments
because of indefiniteness. Held: The convictions are affirmed. Pp. 341 U. S.
495 -499, 341 U. S.
511 -512, 341 U. S.
517 .

															183 F.2d 201, affirmed. Page 341 U. S. 495 For the opinions of the Justices constituting the majority of
the Court, see: Opinion of THE CHIEF JUSTICE, joined by MR. JUSTICE REED, MR.
JUSTICE BURTON and MR. JUSTICE MINTON, p. 341 U. S.
495 .

															Opinion of MR. JUSTICE FRANKFURTER, p. 341 U. S.
517 .

															Opinion of MR. JUSTICE JACKSON, p. 341 U. S.
561 .

															For the dissenting opinion of MR. JUSTICE BLACK, see p. 341 U. S.
579 .

															For the dissenting opinion of MR. JUSTICE DOUGLAS, see p. 341 U. S.
581 .

															The case is stated in the opinion of THE CHIEF JUSTICE, pp. 341 U. S.
495 -499. Affirmed, p. 341 U. S.
517 .

															MR. CHIEF JUSTICE VINSON announced the judgment of the Court and
an opinion in which MR. JUSTICE REED, MR. JUSTICE BURTON and MR.
JUSTICE MINTON join.

															Petitioners were indicted in July, 1948, for violation of the
conspiracy provisions of the Smith Act, 54 Stat. 671, 18 U.S.C.
(1946 ed.) § 11, during the period of April, 1945, to July, 1948.
The pretrial motion to quash the indictment on the grounds, inter alia, that the statute was unconstitutional was
denied, United States v. Foster, 80 F. Supp.
479 , and the case was set for trial on January 17, 1949. A
verdict of guilty as to all the petitioners was returned by the
jury on October 14, 1949. The Court of Appeals affirmed the
convictions. 183 F.2d 201. We granted certiorari, 340 U.S. 863,
limited to the following two questions: (1) Whether either § 2 or §
3 of the Smith Page 341 U. S. 496 Act, inherently or as construed and applied in the instant case,
violates the First Amendment and other provisions of the Bill of
Rights; (2) whether either § 2 or § 3 of the Act, inherently or as
construed and applied in the instant case, violates the First and
Fifth Amendments because of indefiniteness.

															Sections 2 and 3 of the Smith Act, 54 Stat. 671, 18 U.S.C. (1946
ed.) §§ 10, 11 ( see present 18 U.S.C. § 2385), provide as
follows:

															"SEC. 2.(a) It shall be unlawful for any person --"

															"(1) to knowingly or willfully advocate, abet, advise, or teach
the duty, necessity, desirability, or propriety of overthrowing or
destroying any government in the United States by force or
violence, or by the assassination of any officer of any such
government;"

															"(2) with intent to cause the overthrow or destruction of any
government in the United States, to print, publish, edit, issue,
circulate, sell, distribute, or publicly display any written or
printed matter advocating, advising, or teaching the duty,
necessity, desirability, or propriety of overthrowing or destroying
any government in the United States by force or violence;"

															"(3) 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; or to be or become a member of, or affiliate with, any
such society, group, or assembly of persons, knowing the purposes
thereof."

															"(b) For the purposes of this section, the term 'government in
the United States' means the Government of the United States, the
government of any State, Territory, or possession of the United
States, the government of the District of Columbia, or the Page 341 U. S. 497 government of any political subdivision of any of them."

															"SEC. 3. It shall be unlawful for any person to attempt to
commit, or to conspire to commit, any of the acts prohibited by the
provisions of this title."

															The indictment charged the petitioners with willfully and
knowingly conspiring (1) to organize as the Communist Party of the
United States of America a society, group and assembly of persons
who teach and advocate the overthrow and destruction of the
Government of the United States by force and violence, and (2)
knowingly and willfully to advocate and teach the duty and
necessity of overthrowing and destroying the Government of the
United States by force and violence. The indictment further alleged
that § 2 of the Smith Act proscribes these acts and that any
conspiracy to take such action is a violation of § 3 of the
Act.

															The trial of the case extended over nine months, six of which
were devoted to the taking of evidence, resulting in a record of
16,000 pages. Our limited grant of the writ of certiorari has
removed from our consideration any question as to the sufficiency
of the evidence to support the jury's determination that
petitioners are guilty of the offense charged. Whether, on this
record, petitioners did, in fact, advocate the overthrow of the
Government by force and violence is not before us, and we must base
any discussion of this point upon the conclusions stated in the
opinion of the Court of Appeals, which treated the issue in great
detail. That court held that the record in this case amply supports
the necessary finding of the jury that petitioners, the leaders of
the Communist Party in this country, were unwilling to work within
our framework of democracy, but intended to initiate a violent
revolution whenever the propitious occasion appeared. Petitioners
dispute the meaning to be drawn from the evidence, contending that
the Marxist-Leninist Page 341 U. S. 498 doctrine they advocated taught that force and violence to
achieve a Communist form of government in an existing democratic
state would be necessary only because the ruling classes of that
state would never permit the transformation to be accomplished
peacefully, but would use force and violence to defeat any peaceful
political and economic gain the Communists could achieve. But the
Court of Appeals held that the record supports the following broad
conclusions: by virtue of their control over the political
apparatus of the Communist Political Association, [ Footnote 1 ] petitioners were able to
transform that organization into the Communist Party; that the
policies of the Association were changed from peaceful cooperation
with the United States and its economic and political structure to
a policy which had existed before the United States and the Soviet
Union were fighting a common enemy, namely, a policy which worked
for the overthrow of the Government by force and violence; that the
Communist Party is a highly disciplined organization, adept at
infiltration into strategic positions, use of aliases, and double
meaning language; that the Party is rigidly controlled; that
Communists, unlike other political parties, tolerate no dissension
from the policy laid down by the guiding forces, but that the
approved program is slavishly followed by the members of the Party;
that the literature of the Party and the statements and activities
of its leaders, petitioners here, advocate, and the general goal of
the Party was, during the period in question, to achieve a
successful overthrow of the existing order by force and
violence. Page 341 U. S. 499 I It will be helpful in clarifying the issues to treat next the
contention that the trial judge improperly interpreted the statute
by charging that the statute required an unlawful intent before the
jury could convict. More specifically, he charged that the jury
could not find the petitioners guilty under the indictment unless
they found that petitioners had the intent to "overthrow . . . the
Government of the United States by force and violence as speedily
as circumstances would permit."

															Section 2(a)(1) makes it unlawful

															"to knowingly or willfully advocate, . . . or teach the duty,
necessity, desirability, or propriety of overthrowing or destroying
any government in the United States by force or violence. . . .
;"

															Section 2(a)(3), "to organize or help to organize any society,
group, or assembly of persons who teach, advocate, or encourage the
overthrow. . . ." Because of the fact that § 2(a)(2) expressly
requires a specific intent to overthrow the Government, and because
of the absence of precise language in the foregoing subsections, it
is claimed that Congress deliberately omitted any such requirement.
We do not agree. It would require a far greater indication of
congressional desire that intent not be made an element of the
crime than the use of the disjunctive "knowingly or willfully" in §
2(a)(1), or the omission of exact language in § 2(a)(3). The
structure and purpose of the statute demand the inclusion of intent
as an element of the crime. Congress was concerned with those who
advocate and organize for the overthrow of the Government.
Certainly those who recruit and combine for the purpose of
advocating overthrow intend to bring about that overthrow. We hold
that the statute requires as an essential element of the crime
proof of the intent of those who are charged with its violation to
overthrow the Government by force and violence. See Page 341 U. S. 500 Williams v. United States, 341 U. S.
97 , 341 U. S.
101 -102 (1951); Screws v. United States, 325 U. S. 91 , 325 U. S.
101 -105 (1945); Cramer v. United States, 325 U. S. 1 , 325 U. S. 31 (1945).

															Nor does the fact that there must be an investigation of a state
of mind under this interpretation afford any basis for rejection of
that meaning. A survey of Title 18 of the U.S. Code indicates that
the vast majority of the crimes designated by that Title require,
by express language, proof of the existence of a certain mental
state, in words such as "knowingly," "maliciously," "willfully,"
"with the purpose of," "with intent to," or combinations or
permutations of these and synonymous terms. The existence of a mens rea is the rule of, rather than the exception to, the
principles of Anglo-American criminal jurisprudence. See
American Communications Assn. v. Douds, 339 U.
S. 382 , 339 U. S. 411 (1950).

															It has been suggested that the presence of intent makes a
difference in the law when an "act otherwise excusable or carrying
minor penalties" is accompanied by such an evil intent. Yet the
existence of such an intent made the killing condemned in Screws, supra, and the beating in Williams,
supra, both clearly and severely punishable under state law,
offenses constitutionally punishable by the Federal Government. In
those cases, the Court required the Government to prove that the
defendants intended to deprive the victim of a constitutional
right. If that precise mental state may be an essential element of
a crime, surely an intent to overthrow the Government of the United
States by advocacy thereof is equally susceptible of proof.
[ Footnote 2 ] Page 341 U. S. 501 II The obvious purpose of the statute is to protect existing
Government not from change by peaceable, lawful and constitutional
means, but from change by violence, revolution and terrorism. 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. We reject any principle of governmental helplessness in the
face of preparation for revolution, which principle, carried to its
logical conclusion, must lead to anarchy. No one could conceive
that it is not within the power of Congress to prohibit acts
intended to overthrow the Government by force and violence. The
question with which we are concerned here is not whether Congress
has such power, but whether the means which it has employed
conflict with the First and Fifth Amendments to the
Constitution.

															One of the bases for the contention that the means which
Congress has employed are invalid takes the form of an attack on
the face of the statute on the grounds that, by its terms, it
prohibits academic discussion of the merits of Marxism-Leninism,
that it stifles ideas and is contrary to all concepts of a free
speech and a free press. Although we do not agree that the language
itself has that significance, we must bear in mind that it is the
duty of the federal courts to interpret federal legislation in a
manner not inconsistent with the demands of the Constitution. American Communications Assn. v. Douds, 339 U.
S. 382 , 339 U. S. 407 (1950). We are not here confronted with cases similar to Thornhill v. Alabama, 310 U. S. 88 (1940); Herndon v. Lowry, 301 U.
S. 242 (1937), and De Jonge v. Oregon, 299 U. S. 353 (1937), Page 341 U. S. 502 where a state court had given a meaning to a state statute which
was inconsistent with the Federal Constitution. This is a federal
statute which we must interpret as well as judge. Herein lies the
fallacy of reliance upon the manner in which this Court has treated
judgments of state courts. Where the statute as construed by the
state court transgressed the First Amendment, we could not but
invalidate the judgments of conviction.

															The very language of the Smith Act negates the interpretation
which petitioners would have us impose on that Act. It is directed
at advocacy, not discussion. Thus, the trial judge properly charged
the jury that they could not convict if they found that petitioners
did "no more than pursue peaceful studies and discussions or
teaching and advocacy in the realm of ideas." He further charged
that it was not unlawful

															"to conduct in an American college or university a course
explaining the philosophical theories set forth in the books which
have been placed in evidence."

															Such a charge is in strict accord with the statutory language,
and illustrates the meaning to be placed on those words. Congress
did not intend to eradicate the free discussion of political
theories, to destroy the traditional rights of Americans to discuss
and evaluate ideas without fear of governmental sanction. Rather
Congress was concerned with the very kind of activity in which the
evidence showed these petitioners engaged. III But although the statute is not directed at the hypothetical
cases which petitioners have conjured, its application in this case
has resulted in convictions for the teaching and advocacy of the
overthrow of the Government by force and violence, which, even
though coupled with the intent to accomplish that overthrow,
contains an element of speech. For this reason, we must pay
special Page 341 U. S. 503 heed to the demands of the First Amendment marking out the
boundaries of speech.

															We pointed out in Douds, supra, that the basis of the
First Amendment is the hypothesis that speech can rebut speech,
propaganda will answer propaganda, free debate of ideas will result
in the wisest governmental policies. It is for this reason that
this Court has recognized the inherent value of free discourse. An
analysis of the leading cases in this Court which have involved
direct limitations on speech, however, will demonstrate that both
the majority of the Court and the dissenters in particular cases
have recognized that this is not an unlimited, unqualified right,
but that the societal value of speech must, on occasion, be
subordinated to other values and considerations.

															No important case involving free speech was decided by this
Court prior to Schenck v. United States, 249 U. S.
47 (1919). Indeed, the summary treatment accorded an
argument based upon an individual's claim that the First Amendment
protected certain utterances indicates that the Court at earlier
dates placed no unique emphasis upon that right. [ Footnote 3 ] It was not until the classic
dictum of Justice Holmes in the Schenck case that speech per se received that emphasis in a majority opinion. That
case involved a conviction under the Criminal Espionage Act, 40
Stat. 217. The question the Court faced was whether the evidence
was sufficient to sustain the conviction. Writing for a unanimous
Court, Justice Holmes stated that 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 Page 341 U. S. 504 to prevent."

															249 U.S. at 249 U. S. 52 .
But the force of even this expression is considerably weakened by
the reference at the end of the opinion to Goldman v. United
States, 245 U. S. 474 (1918), a prosecution under the same statute. Said Justice
Holmes,

															"Indeed, [ Goldman ] might be said to dispose of the
present contention if the precedent covers all media
concludendi. But as the right to free speech was not referred
to specially, we have thought fit to add a few words."

															249 U.S. at 249 U. S. 52 .
The fact is inescapable, too, that the phrase bore no connotation
that the danger was to be any threat to the safety of the Republic.
The charge was causing and attempting to cause insubordination in
the military forces and obstruct recruiting. The objectionable
document denounced conscription and its most inciting sentence was,
"You must do your share to maintain, support and uphold the rights
of the people of this country." 249 U.S. at 249 U. S. 51 .
Fifteen thousand copies were printed, and some circulated. This
insubstantial gesture toward insubordination in 1917 during war was
held to be a clear and present danger of bringing about the evil of
military insubordination.

															In several later cases involving convictions under the Criminal
Espionage Act, the nub of the evidence the Court held sufficient to
meet the "clear and present danger" test enunciated in Schenck was as follows: Frohwerk v. United
States, 249 U. S. 204 (1919) -- publication of twelve newspaper articles attacking the
war; Debs v. United States, 249 U.
S. 211 (1919) -- one speech attacking United States'
participation in the war; Abrams v. United States, 250 U. S. 616 (1919) -- circulation of copies of two different socialist
circulars attacking the war; Schaefer v. United States, 251 U. S. 466 (1920) -- publication of a German language newspaper with allegedly
false articles, critical of capitalism and the war; Pierce v.
United States, 252 U. S. 239 (1920) -- circulation of copies of a four-page pamphlet written by
a clergyman, attacking Page 341 U. S. 505 the purposes of the war and United States' participation
therein. Justice Holmes wrote the opinions for a unanimous Court in Schenck, Frohwerk and Debs. He and Justice
Brandeis dissented in Abrams, Schaefer and Pierce. The basis of these dissents was that, because of
the protection which the First Amendment gives to speech, the
evidence in each case was insufficient to show that the defendants
had created the requisite danger under Schenck. But these
dissents did not mark a change of principle. The dissenters doubted
only the probable effectiveness of the puny efforts toward
subversion. In Abrams, they wrote,

															"I do not doubt for a moment that, by the same reasoning that
would justify punishing persuasion to murder, the United States
constitutionally may punish speech that produces or is intended to
produce a clear and imminent danger that it will bring about
forthwith certain substantive evils that the United States
constitutionally may seek to prevent."

															250 U.S. at 250 U. S. 627 .
And in Schaefer the test was said to be one of "degree,"
251 U.S. at 251 U. S. 482 ,
although it is not clear whether "degree" refers to clear and
present danger or evil. Perhaps both were meant.

															The rule we deduce from these cases is that, where an offense is
specified by a statute in nonspeech or nonpress terms, a conviction
relying upon speech or press as evidence of violation may be
sustained only when the speech or publication created a "clear and
present danger" of attempting or accomplishing the prohibited
crime, e.g., interference with enlistment. The dissents,
we repeat, in emphasizing the value of speech, were addressed to
the argument of the sufficiency of the evidence.

															The next important case [ Footnote 4 ] before the Court in which free speech was the
crux of the conflict was Gitlow v. New York, 268 U.
S. 652 (1925). There, New York had Page 341 U. S. 506 made it a crime to advocate "the necessity or propriety of
overthrowing . . . organized government by force. . . ." The
evidence of violation of the statute was that the defendant had
published a Manifesto attacking the Government and capitalism. The
convictions were sustained, Justices Holmes and Brandeis
dissenting. The majority refused to apply the "clear and present
danger" test to the specific utterance. Its reasoning was as
follows: the "clear and present danger" test was applied to the
utterance itself in Schenck because the question was
merely one of sufficiency of evidence under an admittedly
constitutional statute. Gitlow however, presented a
different question. There a legislature had found that a certain
kind of speech was, itself, harmful and unlawful. The
constitutionality of such a state statute had to be adjudged by
this Court just as it determined the constitutionality of any state
statute, namely, whether the statute was "reasonable." Since it was
entirely reasonable for a state to attempt to protect itself from
violent overthrow, the statute was perforce reasonable. The only
question remaining in the case became whether there was evidence to
support the conviction, a question which gave the majority no
difficulty. Justices Holmes and Brandeis refused to accept this
approach, but insisted that, wherever speech was the evidence of
the violation, it was necessary to show that the speech created the
"clear and present danger" of the substantive evil which the
legislature had the right to prevent. Justices Holmes and Brandeis,
then, made no distinction between a federal statute which made
certain acts unlawful, the evidence to support the conviction being
speech, and a statute which made speech itself the crime. This
approach was emphasized in Whitney v. California, 274 U. S. 357 (1927), where the Court was confronted with a conviction under the
California Criminal Syndicalist statute. The Court sustained the
conviction, Justices Brandeis and Holmes Page 341 U. S. 507 concurring in the result. In their concurrence they repeated
that, even though the legislature had designated certain speech as
criminal, this could not prevent the defendant from showing that
there was no danger that the substantive evil would be brought
about.

															Although no case subsequent to Whitney and Gitlow has expressly overruled the majority opinions in
those cases, there is little doubt that subsequent opinions have
inclined toward the Holmes-Brandeis rationale. [ Footnote 5 ] And in American Communications
Assn. v. Douds, supra, we were called upon to decide the
validity of § 9(h) of the Labor Management Relations Act of 1947.
That section required officials of unions which desired to avail
themselves of the facilities of the National Labor Relations Board
to take oaths that they did not belong to the Communist Party and
that they did not believe in the overthrow of the Government by
force and violence. We pointed out that Congress did not intend to
punish belief, but rather intended to regulate the conduct of union
affairs. We therefore held that any indirect sanction on speech
which might arise from the oath requirement did not present a
proper case for the "clear and present danger" test, for the
regulation was aimed at conduct, rather than speech. In discussing
the proper measure of evaluation of this kind of legislation, we
suggested that the Homes-Brandeis philosophy insisted that,
where Page 341 U. S. 508 there was a direct restriction upon speech, a "clear and present
danger" that the substantive evil would be caused was necessary
before the statute in question could be constitutionally applied.
And we stated,

															"[The First] Amendment requires 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."

															339 U.S. at 339 U. S. 412 .
But we further suggested that neither Justice Holmes nor Justice
Brandeis ever envisioned that a shorthand phrase should be
crystallized into a rigid rule to be applied inflexibly without
regard to the circumstances of each case. Speech is not an
absolute, above and beyond control by the legislature when its
judgment, subject to review here, is that certain kinds of speech
are so undesirable as to warrant criminal sanction. Nothing is more
certain in modern society than the principle that there are no
absolutes, that a name, a phrase, a standard has meaning only when
associated with the considerations which gave birth to the
nomenclature. See American Communications Assn. v. Douds, 339 U.S. at 339 U. S. 397 .
To those who would paralyze our Government in the face of impending
threat by encasing it in a semantic straitjacket we must reply that
all concepts are relative.

															In this case, we are squarely presented with the application of
the "clear and present danger" test, and must decide what that
phrase imports. We first note that many of the cases in which this
Court has reversed convictions by use of this or similar tests have
been based on the fact that the interest which the State was
attempting to protect was itself too insubstantial to warrant
restriction of speech. In this category we may put such cases as Schneider v. State, 308 U. S. 147 (1939); Cantwell v. Connecticut, 310 U.
S. 296 (1940); Martin v. Struthers, 319 U. S. 141 (1943); West Virginia Board of
Education Page 341 U. S. 509 v. Barnette, 319 U. S. 624 (1943); Thomas v. Collins, 323 U.
S. 516 (1945); Marsh v. Alabama, 326 U.
S. 501 (1946); but cf. Prince v. Massachusetts, 321 U. S. 158 (1944); Cox v. New Hampshire, 312 U.
S. 569 (1941). Overthrow of the Government by force and
violence is certainly a substantial enough interest for the
Government to limit speech. Indeed, this is the ultimate value of
any society, for if a society cannot protect its very structure
from armed internal attack, it must follow that no subordinate
value can be protected. If, then, this interest may be protected,
the literal problem which is presented is what has been meant by
the use of the phrase "clear and present danger" of the utterances
bringing about the evil within the power of Congress to punish.

															Obviously, the words cannot mean that, before the Government may
act, it must wait until the putsch is about to be executed, the
plans have been laid and the signal is awaited. If Government is
aware that a group aiming at its overthrow is attempting to
indoctrinate its members and to commit them to a course whereby
they will strike when the leaders feel the circumstances permit,
action by the Government is required. The argument that there is no
need for Government to concern itself, for Government is strong, it
possesses ample powers to put down a rebellion, it may defeat the
revolution with ease needs no answer. For that is not the question.
Certainly an attempt to overthrow the Government by force, even
though doomed from the outset because of inadequate numbers or
power of the revolutionists, is a sufficient evil for Congress to
prevent. The damage which such attempts create both physically and
politically to a nation makes it impossible to measure the validity
in terms of the probability of success, or the immediacy of a
successful attempt. In the instant case, the trial judge charged
the jury that they could not convict unless they found that
petitioners intended to overthrow the Government Page 341 U. S. 510 "as speedily as circumstances would permit." This does not mean,
and could not properly mean, that they would not strike until there
was certainty of success. What was meant was that the
revolutionists would strike when they thought the time was ripe. We
must therefore reject the contention that success or probability of
success is the criterion.

															The situation with which Justices Holmes and Brandeis were
concerned in Gitlow was a comparatively isolated event,
bearing little relation in their minds to any substantial threat to
the safety of the community. Such also is true of cases like Fiske v. Kansas, 274 U. S. 380 (1927), and De Jonge v. Oregon, 299 U.
S. 353 (1937); but cf. Lazar v. Pennsylvania, 286 U.S. 532 (1932). They were not confronted with any situation
comparable to the instant one -- the development of an apparatus
designed and dedicated to the overthrow of the Government, in the
context of world crisis after crisis.

															Chief Judge Learned Hand, writing for the majority below,
interpreted the phrase as follows:

															"In each case, [courts] must ask whether the gravity of the
'evil,' discounted by its improbability, justifies such invasion of
free speech as is necessary to avoid the danger."

															183 F.2d at 212. We adopt this statement of the rule. As
articulated by Chief Judge Hand, it is as succinct and inclusive as
any other we might devise at this time. It takes into consideration
those factors which we deem relevant, and relates their
significances. More we cannot expect from words.

															Likewise, we are in accord with the court below, which affirmed
the trial court's finding that the requisite danger existed. The
mere fact that, from the period 1945 to 1948, petitioners'
activities did not result in an attempt to overthrow the Government
by force and violence is, of course, no answer to the fact that
there was a group that was ready to make the attempt. The
formation Page 341 U. S. 511 by petitioners of such a highly organized conspiracy, with
rigidly disciplined members subject to call when the leaders, these
petitioners, felt that the time had come for action, coupled with
the inflammable nature of world conditions, similar uprisings in
other countries, and the touch-and-go nature of our relations with
countries with whom petitioners were in the very least
ideologically attuned, convince us that their convictions were
justified on this score. And this analysis disposes of the
contention that a conspiracy to advocate, as distinguished from the
advocacy itself, cannot be constitutionally restrained, because it
comprises only the preparation. It is the existence of the
conspiracy which creates the danger. Cf. Pinkerton v. United
States, 328 U. S. 640 (1946); Goldman v. United States, 245 U.
S. 474 (1918); United States v. Rabinowich, 238 U. S. 78 (1915). If the ingredients of the reaction are present, we cannot
bind the Government to wait until the catalyst is added. IV Although we have concluded that the finding that there was a
sufficient danger to warrant the application of the statute was
justified on the merits, there remains the problem of whether the
trial judge's treatment of the issue was correct. He charged the
jury, in relevant part, as follows:

															"In further construction and interpretation of the statute, I
charge you that it is not the abstract doctrine of overthrowing or
destroying organized government by unlawful means which is
denounced by this law, but the teaching and advocacy of action for
the accomplishment of that purpose, by language reasonably and
ordinarily calculated to incite persons to such action.
Accordingly, you cannot find the defendants or any of them guilty
of the crime charged Page 341 U. S. 512 unless you are satisfied beyond a reasonable doubt that they
conspired to organize a society, group and assembly of persons who
teach and advocate the overthrow or destruction of the Government
of the United States by force and violence and to advocate and
teach the duty and necessity of overthrowing or destroying the
Government of the United States by force and violence, with the
intent that such teaching and advocacy be of a rule or principle of
action and by language reasonably and ordinarily calculated to
incite persons to such action, all with the intent to cause the
overthrow or destruction of the Government of the United States by
force and violence as speedily as circumstances would permit."

															" * * * *" "If you are satisfied that the evidence establishes beyond a
reasonable doubt that the defendants, or any of them, are guilty of
a violation of the statute, as I have interpreted it to you, I find
as matter of law that there is sufficient danger of a substantive
evil that the Congress has a right to prevent to justify the
application of the statute under the First Amendment of the
Constitution."

															"This is matter of law about which you have no concern. It is a
finding on a matter of law which I deem essential to support my
ruling that the case should be submitted to you to pass upon the
guilt or innocence of the defendants. . . ."

															It is thus clear that he reserved the question of the existence
of the danger for his own determination, and the question becomes
whether the issue is of such a nature that it should have been
submitted to the jury.

															The first paragraph of the quoted instructions calls for the
jury to find the facts essential to establish the substantive
crime, violation of §§ 2(a)(1) and 2(a)(3) of Page 341 U. S. 513 the Smith Act, involved in the conspiracy charge. There can be
no doubt that, if the jury found those facts against the
petitioners, violation of the Act would be established. The
argument that the action of the trial court is erroneous in
declaring as a matter of law that such violation shows sufficient
danger to justify the punishment despite the First Amendment rests
on the theory that a jury must decide a question of the application
of the First Amendment. We do not agree.

															When facts are found that establish the violation of a statute,
the protection against conviction afforded by the First Amendment
is a matter of law. The doctrine that there must be a clear and
present danger of a substantive evil that Congress has a right to
prevent is a judicial rule to be applied as a matter of law by the
courts. The guilt is established by proof of facts. Whether the
First Amendment protects the activity which constitutes the
violation of the statute must depend upon a judicial determination
of the scope of the First Amendment applied to the circumstances of
the case.

															Petitioners' reliance upon Justice Brandeis' language in his
concurrence in Whitney, supra, is misplaced. In that case,
Justice Brandeis pointed out that the defendant could have made the
existence of the requisite danger the important issue at her trial,
but that she had not done so. In discussing this failure, he stated
that the defendant could have had the issue determined by the court
or the jury. [ Footnote 6 ] No
realistic construction of this disjunctive language Page 341 U. S. 514 could arrive at the conclusion that he intended to state that
the question was only determinable by a jury. Nor is the incidental
statement of the majority in Pierce, supra, of any more
persuasive effect. [ Footnote 7 ]
There, the issue of the probable effect of the publication had been
submitted to the jury, and the majority was apparently addressing
its remarks to the contention of the dissenters that the jury could
not reasonably have returned a verdict of guilty on the evidence.
[ Footnote 8 ] Indeed, in the
very case in which the phrase was born, Schenck, this
Court itself examined the record to find whether the requisite
danger appeared, and the issue was not submitted to a jury. And in
every later case in which the Court has measured the validity of a
statute by the "clear and present danger" test, that determination
has been by the court, the question of the danger not being
submitted to the jury.

															The question in this case is whether the statute which the
legislature has enacted may be constitutionally applied. In other
words, the Court must examine judicially Page 341 U. S. 515 the application of the statute to the particular situation, to
ascertain if the Constitution prohibits the conviction. We hold
that the statute may be applied where there is a "clear and present
danger" of the substantive evil which the legislature had the right
to prevent. Bearing, as it does, the marks of a "question of law,"
the issue is properly one for the judge to decide. V There remains to be discussed the question of vagueness --
whether the statute as we have interpreted it is too vague, not
sufficiently advising those who would speak of the limitations upon
their activity. It is urged that such vagueness contravenes the
First and Fifth Amendments. This argument is particularly
nonpersuasive when presented by petitioners, who, the jury found,
intended to overthrow the Government as speedily as circumstances
would permit. See Abrams v. United States, 250 U.
S. 616 , 250 U. S.
627 -629 (1919) (dissenting opinion); Whitney v.
California, 274 U. S. 357 , 274 U. S. 373 (1927) (concurring opinion); Taylor v. Mississippi, 319 U. S. 583 , 319 U. S. 589 (1943). A claim of guilelessness ill becomes those with evil
intent. Williams v. United States, 341 U. S.
97 , 341 U. S.
101 -102 (1951); Jordan v. De George, 341 U. S. 223 , 341 U. S.
230 -232 (1951); American Communications Assn. v.
Douds, 339 U.S. at 339 U. S. 413 ; Screws v. United States, 325 U. S. 91 , 325 U. S. 101 (1945).

															We agree that the standard as defined is not a neat,
mathematical formulary. Like all verbalizations it is subject to
criticism on the score of indefiniteness. But petitioners
themselves contend that the verbalization "clear and present
danger" is the proper standard. We see no difference, from the
standpoint of vagueness, whether the standard of "clear and present
danger" is one contained in haec verba within the statute,
or whether it is the judicial measure of constitutional
applicability. We Page 341 U. S. 516 have shown the indeterminate standard the phrase necessarily
connotes. We do not think we have rendered that standard any more
indefinite by our attempt to sum up the factors which are included
within its scope. We think it well serves to indicate to those who
would advocate constitutionally prohibited conduct that there is a
line beyond which they may not go -- a line which they, in full
knowledge of what they intend and the circumstances in which their
activity takes place, will well appreciate and understand. Williams, supra, at 341 U. S.
101 -102; Jordan, supra, at 341 U. S.
230 -232; United States v. Petrillo, 332 U. S. 1 , 332 U. S. 7 (1948); United States v. Wurzbach, 280 U.
S. 396 , 280 U. S. 399 (1930); Nash v. United States, 229 U.
S. 373 , 229 U. S.
376 -377 (1913). Where there is doubt as to the intent of
the defendants, the nature of their activities, or their power to
bring about the evil, this Court will review the convictions with
the scrupulous care demanded by our Constitution. But we are not
convinced that, because there may be borderline cases at some time
in the future, these convictions should be reversed because of the
argument that these petitioners could not know that their
activities were constitutionally proscribed by the statute.

															We have not discussed many of the questions which could be
extracted from the record, although they were treated in detail by
the court below. Our limited grant of the writ of certiorari has
withdrawn from our consideration at this date those questions,
which include, inter alia, sufficiency of the evidence,
composition of jury, and conduct of the trial.

															We hold that §§ 2(a)(1), 2(a)(3) and 3 of the Smith Act do not
inherently, or as construed or applied in the instant case, violate
the First Amendment and other provisions of the Bill of Rights, or
the First and Fifth Amendments because of indefiniteness.
Petitioners intended to overthrow the Government of the United
States as speedily as the circumstances would permit. Their
conspiracy Page 341 U. S. 517 to organize the Communist Party and to teach and advocate the
overthrow of the Government of the United States by force and
violence created a "clear and present danger" of an attempt to
overthrow the Government by force and violence. They were properly
and constitutionally convicted for violation of the Smith Act. The
judgments of conviction are Affirmed. MR. JUSTICE CLARK took no part in the consideration or decision
of this case.

															[ Footnote 1 ]

															Following the dissolution of the Communist International in
1943, the Communist Party of the United States dissolved and was
reconstituted as the Communist Political Association. The program
of this Association was one of cooperation between labor and
management, and, in general, one designed to achieve national unity
and peace and prosperity in the post-war period.

															[ Footnote 2 ]

															We have treated this point because of the discussion accorded it
by the Court of Appeals and its importance to the administration of
this statute, compare Johnson v. United States, 318 U. S. 189 (1943), although petitioners themselves requested a charge similar
to the one given, and under Rule 30 of the Federal Rules of
Criminal Procedure would appear to be barred from raising this
point on appeal. Cf. Boyd v. United States, 271 U.
S. 104 (1926).

															[ Footnote 3 ] Toledo Newspaper Co. v. United States, 247 U.
S. 402 (1918); Fox v. Washington, 236 U.
S. 273 (1915); Davis v. Massachusetts, 167 U. S. 43 (1897); see Gompers v. Bucks Stove & Range Co., 221 U. S. 418 , 221 U. S. 439 (1911); Robertson v. Baldwin, 165 U.
S. 275 , 165 U. S. 281 (1897).

															[ Footnote 4 ] Cf. Gilbert v. Minnesota, 254 U.
S. 325 (1920).

															[ Footnote 5 ]

															Contempt of court: Craig v. Harney, 331 U.
S. 367 , 331 U. S. 373 (1947); Pennecamp v. Florida, 328 U.
S. 331 , 328 U. S.
333 -336 (1946); Bridges v. California, 314 U. S. 252 , 314 U. S.
260 -263 (1941).

															Validity of state statute: Thomas v. Collins, 323 U. S. 516 , 323 U. S. 530 (1945); Taylor v. Mississippi, 319 U.
S. 583 , 319 U. S.
589 -590 (1943); Thornhill v. Alabama, 310 U. S. 88 , 310 U. S.
104 -106 (1940).

															Validity of local ordinance or regulation: West Virginia
Board of Education v. Barnette, 319 U.
S. 624 , 319 U. S. 639 (1943); Carlson v. California, 310 U.
S. 106 , 310 U. S. 113 (1940).

															Common law offense: Cantwell v. Connecticut, 310 U. S. 296 , 310 U. S. 308 , 310 U. S. 311 (1940).

															[ Footnote 6 ]

															"Whether, in 1919, when Miss Whitney did the things complained
of, there was in California such clear and present danger of
serious evil might have been made the important issue in the case.
She might have required that the issue be determined either by the
court or the jury. She claimed below that the statute, as applied
to her, violated the Federal Constitution, but she did not claim
that it was void because there was no clear and present danger of
serious evil, nor did she request that the existence of these
conditions of a valid measure thus restricting the rights of free
speech and assembly be passed upon by the court or a jury. On the other hand, there was evidence on which the court or
jury might have found that such danger existed."

															(Emphasis added.) 274 U.S. at 274 U. S.
379 .

															[ Footnote 7 ]

															"Whether the printed words would, in fact, produce as a
proximate result a material interference with the recruiting or
enlistment service, or the operation or success of the forces of
the United States, was a question for the jury to decide in view of
all the circumstances of the time and considering the place and
manner of distribution." 252 U.S.
239 , 252 U. S. 250 (1920).

															[ Footnote 8 ]

															A similarly worded expression is found in that part of the
majority opinion sustaining the overruling of the defendants'
general demurrer to the indictment. 252 U.S. at 252 U. S. 244 .
Since the defendants had not raised the issue of "clear and present
danger" at the trial, it is clear that the Court was not faced with
the question whether the trial judge erred in not determining, as a
conclusive matter, the existence or nonexistence of a "clear and
present danger." The only issue to which the remarks were addressed
was whether the indictment sufficiently alleged the violation.

															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 Page 341 U. S. 518 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 Page 341 U. S. 519 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 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, 19 U. S. 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 Page 341 U. S. 520 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 , 130 U. S. 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, 79 U. S. 554 , 79 U. S. 556 , and see In re Debs, 158 U. S. 564 , 158 U. S.
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 , 251 U. S. 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 Page 341 U. S. 521 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. [ Footnote 2/1 ] The
Pennsylvania Constitution of 1790 and the Delaware Constitution of
1792 expressly imposed liability for abuse of the right of free
speech. [ Footnote 2/2 ] Madison's
own State put on its books in 1792 a statute confining the abusive
exercise of the right of utterance. [ Footnote 2/3 ] 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 Page 341 U. S. 522 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.
[ Footnote 2/4 ] Page 341 U. S. 523 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. Page 341 U. S. 524 "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 , 165 U. S. 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 , 233 U. S. 610 .
Absolute rules would inevitably lead to absolute exceptions, and
such exceptions would eventually corrode the rules. [ Footnote 2/5 ] The demands of free speech in
a democratic society, as well as the interest Page 341 U. S. 525 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 , 99 U. S. 718 ; Mugler v. Kansas, 123 U. S. 623 , 123 U. S.
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 . Page 341 U. S. 526 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 , 264 U. S.
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 , 336 U. S. 89 , 336 U. S. 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 , 323 U. S. 530 .
It has been suggested, with the casualness of a footnote, that such
legislation is not Page 341 U. S. 527 presumptively valid, see United States v. Carolene Products
Co., 304 U. S. 144 , 304 U. S. 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 , 336 U. S.
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. [ Footnote 2/6 ] 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. Page 341 U. S. 528 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, 19 U. S. 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 , 193 U. S.
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. Page 341 U. S. 529 II We have recognized and resolved conflicts between speech and
competing interests in six different types of cases. [ Footnote 2/7 ]

															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 , 340 U. S. 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 Page 341 U. S. 530 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." Page 341 U. S. 531 194 U.S. at 194 U. S. 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 Page 341 U. S. 532 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 , 331 U. S. 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. " Page 341 U. S. 533 339 U.S. at 339 U. S. 400 .
On balance, we decided that the legislative judgment was a
permissible one. [ Footnote 2/8 ]

															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 236 U. S.
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 Page 341 U. S. 534 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 249 U. S. 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 , 165 U. S.
281 ." Frohwerk v. United States, supra, at 249 U. S.
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 249 U. S. 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 249 U. S.
216 . Page 341 U. S. 535 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 250 U. S. 631 ,
were involved, that they were "puny anonymities," 250 U.S. at 250 U. S. 629 ,
"impotent to produce the evil against which the statute aimed," 251 U. S.
251 Page 341 U. S. 536 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 268 U. S. 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 Page 341 U. S. 537 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 274 U. S.
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 268 U. S.
672 -673. Since the Manifesto circulated by Gitlow "had
no chance of starting a present conflagration," 268 U.S. at 268 U. S. 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.
[ Footnote 2/9 ]

															(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 322 U. S. S.
538� 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. [ Footnote 2/10 ] Page 341 U. S. 539 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 319 U. S.
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 Page 341 U. S. 540 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 Page 341 U. S. 541 sales, decision could be sustained on narrower ground. And
compare Breard v. Alexandria, post, p. 341 U. S. 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 314 U. S. 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. Page 341 U. S. 542 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 Page 341 U. S. 543 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 249 U. S. 52 , it
would be a distortion, indeed a mockery, of his reasoning to
compare the "puny anonymities," 250 U.S. at 250 U. S. 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 268 U. S. 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 Page 341 U. S. 544 States, 225 U. S. 347 , 225 U. S.
384 , at 225 U. S. 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 , 328 U. S. 350 , 328 U. S.
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 , 315 U. S. 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 340 U. S.
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," Page 341 U. S. 545 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 283 U. S. 369 . See also Near v. Minnesota, 283 U.S. at 283 U. S. 716 ; De Jonge v. Oregon, 299 U.S. at 299 U. S. 365 ; Cantwell v. Connecticut, 310 U. S. 296 , 310 U. S. 308 ; Taylor v. Mississippi, 319 U.S. at 319 U. S.
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 268 U. S. 673 .
Even though advocacy of overthrow deserves little protection, we
should hesitate to prohibit it if we thereby inhibit the Page 341 U. S. 546 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 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, Page 341 U. S. 547 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. [ Footnote
2/11 ] 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 Page 341 U. S. 548 "the Communist movement was the principal base within which the
espionage network was recruited." [ Footnote 2/12 ] The most notorious spy in recent history
was led into the service of the Soviet Union through Communist
indoctrination. [ Footnote 2/13 ]
Evidence supports the conclusion that members of the Party seek and
occupy positions of importance in political and labor
organizations. [ Footnote 2/14 ]
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 Page 341 U. S. 549 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. Page 341 U. S. 550 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 Page 341 U. S. 551 the seriousness of the congressional purpose is attested by the
volume of legislation passed to effectuate the same ends. [ Footnote 2/15 ]

															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 Page 341 U. S. 552 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. Page 341 U. S. 553 IV 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 Page 341 U. S. 554 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 Page 341 U. S. 555 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 Page 341 U. S. 556 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.

															| 341
U.S. 494 app| APPENDIX TO OPINION OF MR. JUSTICE FRANKFURTER. 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 , 310 U. S.
104 -105 (State statute prohibiting picketing held
invalid):

															". . . Every Page 341 U. S. 557 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 , 314 U. S.
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 Page 341 U. S. 558 by the restriction is 'destruction of life or property, or
invasion of the right of privacy.' Thornhill v. Alabama, 310 U. S.
88 , 310 U. S. 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 , 319 U. S. 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 Page 341 U. S. 559 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 , 323 U. S.
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 , 304 U. S.
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. " Page 341 U. S. 560 5. Craig v. Harney, 331 U. S. 367 , 331 U. S. 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 , 336 U. S. 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 , 337 U. S. 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 ,] 315 U. S. 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 , 314 U. S. 262 ; Craig v.
Harney, 331 U. S. 367 , 331 U. S.
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 , 339 U. S. 396 , 339 U. S. 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 Page 341 U. S. 561 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."

															[ Footnote 2/1 ]

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

															[ Footnote 2/2 ]

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

															[ Footnote 2/3 ]

															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. CXXXVI.

															[ Footnote 2/4 ]

															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.

															[ Footnote 2/5 ]

															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.

															[ Footnote 2/6 ]

															In Hartzel v. United States, 322 U.
S. 680 , 322 U. S. 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. 341 U. S.
556 .

															[ Footnote 2/7 ]

															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.

															[ Footnote 2/8 ]

															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 .

															[ Footnote 2/9 ] Burns v. United States, 274 U.
S. 328 , adds nothing to the decision in Whitney v.
California. [ Footnote 2/10 ]

															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 295 U. S.
446 .

															[ Footnote 2/11 ] 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.

															[ Footnote 2/12 ]

															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.

															[ Footnote 2/13 ]

															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.

															[ Footnote 2/14 ] 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.

															[ Footnote 2/15 ]

															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.

															MR. JUSTICE JACKSON, concurring.

															This prosecution is the latest of never-ending, because never
successful, quests for some legal formula that will secure an
existing order against revolutionary radicalism. It requires us to
reappraise, in the light of our own times and conditions,
constitutional doctrines devised under other circumstances to
strike a balance between authority and liberty.

															Activity here charged to be criminal is conspiracy -- that
defendants conspired to teach and advocate, and to organize the
Communist Party to teach and advocate, overthrow and destruction of
the Government by force and violence. There is no charge of actual
violence or attempt at overthrow. [ Footnote 3/1 ]

															The principal reliance of the defense in this Court is that the
conviction cannot stand under the Constitution because the
conspiracy of these defendants presents no "clear and present
danger" of imminent or foreseeable overthrow. Page 341 U. S. 562 I The statute before us repeats a pattern, originally devised to
combat the wave of anarchistic terrorism that plagued this country
about the turn of the century, [ Footnote 3/2 ] which lags at least two generations behind
Communist Party techniques.

															Anarchism taught a philosophy of extreme individualism and
hostility to government and property. Its avowed aim was a more
just order, to be achieved by violent destruction of all
government. [ Footnote 3/3 ]
Anarchism's sporadic and uncoordinated acts of terror were not
integrated with an effective revolutionary machine, but the Chicago
Haymarket riots of 1886, [ Footnote
3/4 ] attempted murder of the industrialist Frick, attacks on
state officials, and Page 341 U. S. 563 assassination of President McKinley in 1901, were fruits of its
preaching.

															However, extreme individualism was not educive to cohesive and
disciplined organization. Anarchism fell into disfavor among
incendiary radicals, many of whom shifted their allegiance to the
rising Communist Party. Meanwhile, in Europe, anarchism had been
displaced by Bolshevism as the doctrine and strategy of social and
political upheaval. Led by intellectuals hardened by revolutionary
experience, it was a more sophistic&ted, dynamic and realistic
movement. Establishing a base in the Soviet Union, it founded an
aggressive international Communist apparatus which has modeled and
directed a revolutionary movement able only to harass our own
country. But it has seized control of a dozen other countries.

															Communism, the antithesis of anarchism, [ Footnote 3/5 ] appears today as a closed system of
thought representing Stalin's Page 341 U. S. 564 version of Lenin's version of Marxism. As an ideology, it is not
one of spontaneous protest arising from American working-class
experience. It is a complicated system of assumptions, based on
European history and conditions, shrouded in an obscure and
ambiguous vocabulary, which allures our ultrasophisticated
intelligentsia more than our hard-headed working people. From time
to time it champions all manner of causes and grievances and makes
alliances that may add to its foothold in government or embarrass
the authorities.

															The Communist Party, nevertheless, does not seek its strength
primarily in numbers. Its aim is a relatively small party whose
strength is in selected, dedicated, indoctrinated, and rigidly
disciplined members. From established policy it tolerates no
deviation and no debate. It seeks members that are, or may be,
secreted in strategic posts in transportation, communications,
industry, government, and especially in labor unions where it can
compel employers to accept and retain its members. [ Footnote 3/6 ] It also seeks to infiltrate and
control organizations of professional and other groups. Through
these placements in positions of power, it seeks a leverage over
society that will make up in power of coercion what it lacks in
power of persuasion.

															The Communists have no scruples against sabotage, terrorism,
assassination, or mob disorder, but violence is not with them, as
with the anarchists, an end in itself. The Communist Party
advocates force only when prudent and profitable. Their strategy of
stealth precludes premature or uncoordinated outbursts of violence,
except, of course, when the blame will be placed on shoulders other
than their own. They resort to violence as to truth, not Page 341 U. S. 565 as a principle but as an expedient. Force or violence, as they
would resort to it, may never be necessary, because infiltration
and deception may be enough.

															Force would be utilized by the Communist Party not to destroy
government, but for its capture. The Communist recognizes that an
established government in control of modern technology cannot be
overthrown by force until it is about ready to fall of its own
weight. Concerted uprising, therefore, is to await that
contingency, and revolution is seen not as a sudden episode, but as
the consummation of a long process.

															The United States, fortunately, has experienced Communism only
in its preparatory stages, and, for its pattern of final action,
must look abroad. Russia, of course, was the pilot Communist
revolution which, to the Marxist, confirms the Party's assumptions
and points its destiny. [ Footnote
3/7 ] Page 341 U. S. 566 But Communist technique in the overturn of a free government was
disclosed by the coup d'etat in which they seized power in
Czechoslovakia. [ Footnote 3/8 ]
There, the Communist Party, during its preparatory stage, claimed
and received protection for its freedoms of speech, press, and
assembly. Pretending to be but another political party, it
eventually was conceded participation in government, where it
entrenched reliable members chiefly in control of police and
information services. When the government faced a foreign and
domestic crisis, the Communist Party had established a leverage
strong enough to threaten civil war. In a period of confusion, the
Communist plan unfolded, and the underground organization came to
the surface throughout the country in the form chiefly of labor
"action committees." Communist officers of the unions took over
transportation, and allowed only persons with party permits to
travel. Communist printers took over the newspapers and radio, and
put out only party-approved versions of events. Possession was
taken of telegraph and telephone systems, and communications were
cut off wherever directed by party heads. Communist unions took
over the factories, and in the cities, a partisan distribution of
food was managed by the Communist organization. A virtually
bloodless abdication by the elected government admitted the
Communists to power, whereupon they instituted a reign of
oppression and terror, and ruthlessly denied to all others the
freedoms which had sheltered their conspiracy. Page 341 U. S. 567 II The foregoing is enough to indicate that,.either by accident or
design, the Communist stratagem outwits the anti-anarchist pattern
of statute aimed against "overthrow by force and violence" if
qualified by the doctrine that only "clear and present danger" of
accomplishing that result will sustain the prosecution.

															The "clear and present danger" test was an innovation by Mr.
Justice Holmes in the Schenck case, [ Footnote 3/9 ] reiterated and refined by him and Mr.
Justice Brandeis in later cases, [ Footnote 3/10 ] all arising before the era of World War
II revealed the subtlety and efficacy of modernized revolutionary
techniques used by totalitarian parties. In those cases, they were
faced with convictions under so-called criminal syndicalism
statutes aimed at anarchists but which, loosely construed, had been
applied to punish socialism, pacifism, and left-wing ideologies,
the charges often resting on far-fetched Page 341 U. S. 568 inferences which, if true, would establish only technical or
trivial violations. They proposed "clear and present danger" as a
test for the sufficiency of evidence in particular cases.

															I would save it, unmodified, for application as a "rule of
reason" [ Footnote 3/11 ] in the
kind of case for which it was devised. When the issue is
criminality of a hot-headed speech on a street corner, or
circulation of a few incendiary pamphlets, or parading by some
zealots behind a red flag, or refusal of a handful of school
children to salute our flag, it is not beyond the capacity of the
judicial process to gather, comprehend, and weigh the necessary
materials for decision whether it is a clear and present danger of
substantive evil or a harmless letting off of steam. It is not a
prophecy, for the danger in such cases has matured by the time of
trial or it was never present. The test applies and has meaning
where a conviction is sought to be based on a speech or writing
which does not directly or explicitly advocate a crime, but to
which such tendency is sought to be attributed by construction or
by implication from external circumstances. The formula in such
cases favors freedoms that are vital to our society, and even if
sometimes applied too generously, the consequences cannot be grave.
But its recent expansion has extended, in particular to Communists,
unprecedented immunities. [ Footnote
3/12 ] Unless we are to hold our Government captive in a
judge-made verbal trap, we must approach the problem of a well
organized, nationwide conspiracy, such as I have Page 341 U. S. 569 described, as realistically as our predecessors faced the
trivialities that were being prosecuted until they were checked
with a rule of reason.

															I think reason is lacking for applying that test to this
case. Page 341 U. S. 570 If we must decide that this Act and its application are
constitutional only if we are convinced that petitioner's conduct
creates a "clear and present danger" of violent overthrow, we must
appraise imponderables, including international and national
phenomena which baffle the best informed foreign offices and our
most experienced politicians. We would have to foresee and predict
the effectiveness of Communist propaganda, opportunities for
infiltration, whether, and when, a time will come that they
consider propitious for action, and whether and how fast our
existing government will deteriorate. And we would have to
speculate as to whether an approaching Communist coup would not be
anticipated by a nationalistic fascist movement. No doctrine can be
sound whose application requires us to make a prophecy of that sort
in the guise of a legal decision. The judicial process simply is
not adequate to a trial of such far-flung issues. The answers given
would reflect our own political predilections, and nothing
more.

															The authors of the clear and present danger test never applied
it to a case like this, nor would I. If applied as it is proposed
here, it means that the Communist plotting is protected during its
period of incubation; its preliminary stages of organization and
preparation are immune from the law; the Government can move only
after imminent action is manifest, when it would, of course, be too
late. III The highest degree of constitutional protection is due to the
individual acting without conspiracy. But even an individual cannot
claim that the Constitution protects him in advocating or teaching
overthrow of government by force or violence. I should suppose no
one would doubt that Congress has power to make such attempted Page 341 U. S. 571 overthrow a crime. But the contention is that one has the
constitutional right to work up a public desire, and will to do
what it is a crime to attempt. I think direct incitement by speech
or writing can be made a crime, and I think there can be a
conviction without also proving that the odds favored its success
by 99 to 1, or some other extremely high ratio.

															The names of Mr. Justice Holmes and Mr. Justice Brandeis cannot
be associated with such a doctrine of governmental disability.
After the Schenck case, in which they set forth the clear
and present danger test, they joined in these words of Mr. Justice
Holmes, spoken for a unanimous Court:

															". . . [T]he First Amendment, while prohibiting legislation
against free speech as such, cannot have been, and obviously was
not, intended to give immunity for every possible use of language. Robertson v. Baldwin, 165 U. S. 275 , 165 U. S.
281 . We venture to believe that neither Hamilton nor
Madison, nor any other competent person then or later, ever
supposed that to make criminal the counseling of a murder within
the jurisdiction of Congress would be an unconstitutional
interference with free speech." Frohwerk v. United States, 249 U.
S. 204 , 249 U. S.
206 .

															The same doctrine was earlier stated in Fox v.
Washington, 236 U. S. 273 , 236 U. S. 277 ,
and that case was recently and with approval cited in Giboney
v. Empire Storage & Ice Co., 336 U.
S. 490 , 336 U. S.
502 .

															As aptly stated by Judge Learned Hand in Masses Publishing
Co. v. Patten, 244 F. 535, 540:

															"One may not counsel or advise others to violate the law as it
stands. Words are not only the keys of persuasion, but the triggers
of action, and those which have no purport but to counsel the
violation of law cannot by any latitude of interpretation be a part
of that public opinion which is the final source of government in a
democratic state. " Page 341 U. S. 572 Of course, it is not always easy to distinguish teaching or
advocacy in the sense of incitement from teaching or advocacy in
the sense of exposition or explanation. It is a question of fact in
each case. IV What really is under review here is a conviction of conspiracy,
after a trial for conspiracy, on an indictment charging conspiracy,
brought under a statute outlawing conspiracy. With due respect to
my colleagues, they seem to me to discuss anything under the sun
except the law of conspiracy. One of the dissenting opinions even
appears to chide me for "invoking the law of conspiracy." As that
is the case before us, it may be more amazing that its reversal can
be proposed without even considering the law of conspiracy.

															The Constitution does not make conspiracy a civil right. The
Court has never before done so, and I think it should not do so
now. Conspiracies of labor unions, trade associations, and news
agencies have been condemned, although accomplished, evidenced and
carried out, like the conspiracy here, chiefly by letter-writing,
meetings, speeches and organization. Indeed, this Court seems,
particularly in cases where the conspiracy has economic ends, to be
applying its doctrines with increasing severity. While I consider
criminal conspiracy a dragnet device capable of perversion into an
instrument of injustice in the hands of a partisan or complacent
judiciary, it has an established place in our system of law, and no
reason appears for applying it only to concerted action claimed to
disturb interstate commerce and withholding it from those claimed
to undermine our whole Government. [ Footnote 3/13 ] Page 341 U. S. 573 The basic rationale of the law of conspiracy is that a
conspiracy may be an evil in itself, independently of any other
evil it seeks to accomplish. Thus, we recently held in Pinkerton v. United States, 328 U.
S. 640 , 328 U. S.
643 -644,

															"It has been long and consistently recognized by the Court that
the commission of the substantive offense and a conspiracy to
commit it are separate and distinct offenses. The power of Congress
to separate the two and to affix to each a different penalty is
well established. . . . And the plea of double jeopardy is no
defense to a conviction for both offenses. . . ."

															So far does this doctrine reach that it is well settled that
Congress may make it a crime to conspire with others to do what an
individual may lawfully do on his own. This principle is
illustrated in conspiracies that violate the antitrust laws as
sustained and applied by this Court. Although one may raise the
prices of his own products, and many, acting without concert, may
do so, the moment they conspire to that end, they are punishable.
The same principle is applied to organized labor. Any workman may
quit his work for any reason, but concerted actions to the same end
are in some circumstances forbidden. National Labor Relations Act,
as amended, 61 Stat. 136, § 8(b), 29 U.S.C. § 158(b).

															The reasons underlying the doctrine that conspiracy may be a
substantive evil in itself, apart from any evil it may threaten,
attempt, or accomplish, are peculiarly appropriate to
conspiratorial Communism.

															"The reason for finding criminal liability in case of a
combination to effect an unlawful end or to use unlawful means,
where none would exist, even though the act contemplated were
actually committed by an individual, is that a combination of
persons to commit a wrong, either as an end or as a means to an
end, is so much more dangerous, because of its increased power to
do wrong, because it is more difficult Page 341 U. S. 574 to guard against and prevent the evil designs of a group of
persons than of a single person, and because of the terror which
fear of such a combination tends to create in the minds of people.
[ Footnote 3/14 ]"

															There is lamentation in the dissents about the injustice of
conviction in the absence of some overt act. Of course, there has
been no general uprising against the Government, but the record is
replete with acts to carry out the conspiracy alleged, acts such as
always are held sufficient to consummate the crime where the
statute requires an overt act.

															But the shorter answer is that no overt act is or need be
required. The Court, in antitrust cases, early upheld the power of
Congress to adopt the ancient common law that makes conspiracy
itself a crime. Through Mr. Justice Holmes, it said:

															"Coming next to the objection that no overt act is laid, the
answer is that the Sherman Act punishes the conspiracies at which
it is aimed on the common law footing -- that is to say, it does
not make the doing of any act other than the act of conspiring a
condition of liability." Nash v. United States, 229 U.
S. 373 , 229 U. S. 378 .
Reiterated, United States v. Socony-Vacuum Oil Co., 310 U. S. 150 , 310 U. S. 252 .
It is not to be supposed that the power of Congress to protect the
Nation's existence is more limited than its power to protect
interstate commerce.

															Also, it is urged that, since the conviction is for conspiracy
to teach and advocate, and to organize the Communist Party to teach
and advocate, the First Amendment is violated because freedoms of
speech and press protect teaching and advocacy regardless of what
is taught or advocated. I have never thought that to be the
law. Page 341 U. S. 575 I do not suggest that Congress could punish conspiracy to
advocate something, the doing of which it may not punish. Advocacy
or exposition of the doctrine of communal property ownership, or
any political philosophy unassociated with advocacy of its
imposition by force or seizure of government by unlawful means
could not be reached through conspiracy prosecution. But it is not
forbidden to put down force or violence, it is not forbidden to
punish its teaching or advocacy, and the end being punishable,
there is no doubt of the power to punish conspiracy for the
purpose.

															The defense of freedom of speech or press has often been raised
in conspiracy cases, because, whether committed by Communists, by
businessmen, or by common criminals, it usually consists of words
written or spoken, evidenced by letters, conversations, speeches or
documents. Communication is the essence of every conspiracy, for
only by it can common purpose and concert of action be brought
about or be proved. However, when labor unions raised the defense
of free speech against a conspiracy charge, we unanimously
said:

															"It rarely has been suggested that the constitutional freedom
for speech and press extends its immunity to speech or writing used
as an integral part of conduct in violation of a valid criminal
statute. We reject the contention now. . . ."

															". . . It is true that the agreements and course of conduct here
were as in most instances brought about through speaking or
writing. But it has never been deemed an abridgment of freedom of
speech or press to make a course of conduct illegal merely because
the conduct was in part initiated, evidenced, or carried out by
means of language, either spoken, written, or printed. . . . Such
an expansive interpretation Page 341 U. S. 576 of the constitutional guaranties of speech and press would make
it practically impossible ever to enforce laws against agreements
in restraint of trade, as well as many other agreements and
conspiracies deemed injurious to society." Giboney v. Empire Storage & Ice Co., 336 U.
S. 490 , 336 U. S. 498 , 336 U. S.
502 .

															A contention by the press itself, in a conspiracy case, that it
was entitled to the benefits of the "clear and present danger"
test, was curtly rebuffed by this Court, saying:

															"Nor is a publisher who engages in business practices made
unlawful by the Sherman Act entitled to a partial immunity by
reason of the 'clear and present danger' doctrine. . . . Formulated
as it was to protect liberty of thought and of expression, it would
degrade the clear and present danger doctrine to fashion from it a
shield for business publishers who engage in business practices
condemned by the Sherman Act. . . ." Associated Press v. United States, 326 U. S.
1 , 326 U. S. 7 . I
should think it at least as "degrading" to fashion of it a shield
for conspirators whose ultimate purpose is to capture or overthrow
the Government.

															In conspiracy cases, the Court not only has dispensed with proof
of clear and present danger, but even of power to create a
danger:

															"It long has been settled, however, that a 'conspiracy to commit
a crime is a different offense from the crime that is the object of
the conspiracy.' . . . Petitioners, for example, might have been
convicted here of a conspiracy to monopolize without ever having
acquired the power to carry out the object of the conspiracy. . .
." American Tobacco Co. v. United States, 328 U.
S. 781 , 328 U. S.
789 .

															Having held that a conspiracy alone is a crime and its
consummation is another, it would be weird legal reasoning to hold
that Congress could punish the one only if there was "clear and
present danger" of the second. This Page 341 U. S. 577 would compel the Government to prove two crimes in order to
convict for one.

															When our constitutional provisions were written, the chief
forces recognized as antagonists in the struggle between authority
and liberty were the Government, on the one hand, and the
individual citizen, on the other. It was thought that, if the state
could be kept in its place, the individual could take care of
himself.

															In more recent times, these problems have been complicated by
the intervention between the state and the citizen of permanently
organized, well financed, semi-secret and highly disciplined
political organizations. Totalitarian groups here and abroad
perfected the technique of creating private paramilitary
organizations to coerce both the public government and its
citizens. These organizations assert as against our Government all
of the constitutional rights and immunities of individuals, and at
the same time exercise over their followers much of the authority
which they deny to the Government. The Communist Party
realistically is a state within a state, an authoritarian
dictatorship within a republic. It demands these freedoms not for
its members, but for the organized party. It denies to its own
members at the same time the freedom to dissent, to debate, to
deviate from the party line, and enforces its authoritarian rule by
crude purges, if nothing more violent.

															The law of conspiracy has been the chief means at the
Government's disposal to deal with the growing problems created by
such organizations. I happen to think it is an awkward and inept
remedy, but I find no constitutional authority for taking this
weapon from the Government. There is no constitutional right to
"gang up" on the Government.

															While I think there was power in Congress to enact this statute
and that, as applied in this case, it cannot be Page 341 U. S. 578 held unconstitutional, [ Footnote
3/15 ] I add that I have little faith in the long-range
effectiveness of this conviction to stop the rise of the Communist
movement. Communism will not go to jail with these Communists. No
decision by this Court can forestall revolution whenever the
existing government fails to command the respect and loyalty of the
people and sufficient distress and discontent is allowed to grow up
among the masses. Many failures by fallen governments attest that
no government can long prevent revolution by outlawry. [ Footnote 3/16 ] Corruption, ineptitude,
inflation, oppressive taxation, militarization, injustice, and loss
of leadership capable of intellectual initiative in domestic or
foreign affairs are allies on which the Communists Page 341 U. S. 579 count to bring opportunity knocking to their door. Sometimes I
think they may be mistaken. But the Communists are not building
just for today -- the rest of us might profit by their example.

															[ Footnote 3/1 ]

															The Government's own summary of its charge is:

															"The indictment charged that from, April 1, 1945, to the date of
the indictment, petitioners unlawfully, willfully, and knowingly
conspired with each other and with other persons unknown to the
grand jury (1) to organize as the Communist Party of the United
States of America a society, group and assembly of persons who
teach and advocate the overthrow and destruction of the Government
of the United States by force and violence, and (2) knowingly and
willfully to advocate and teach the duty and necessity of
overthrowing and destroying the Government of the United States by
force and violence. The indictment alleged that Section 2 of the
Smith Act proscribes these acts, and that the conspiracy to take
such action is a violation of Section 3 of the act (18 U.S.C. 10,
11 (1946 ed.))."

															[ Footnote 3/2 ]

															The Government says this Act before us was modeled after the New
York Act of 1909, sustained by this Court in Gitlow v. New
York, 268 U. S. 652 .
That, in turn, as the Court pointed out, followed an earlier New
York Act of 1902. Shortly after the assassination of President
McKinley by an anarchist, Congress adopted the same concepts in the
Immigration Act of March 3, 1903. 32 Stat. 1213, § 2. Some germs of
the same concept can be found in some reconstruction legislation,
such as the Enforcement Act of 1871, 17 Stat. 13. The Espionage Act
of 1917, 40 Stat. 217, tit. 1, § 3, which gave rise to a series of
civil rights decisions, applied only during war and defined as
criminal "false statements with intent" to interfere with our war
effort or cause insubordination in the armed forces or obstruct
recruiting. However, a wave of "criminal syndicalism statutes" were
enacted by the States. They were generally upheld, Whitney v.
California, 274 U. S. 357 , and
prosecutions under them were active from 1919 to 1924. In
California alone, 531 indictments were returned and 164 persons
convicted. 4 Encyc.Soc.Sci. 582, 583. The Smith Act followed
closely the terminology designed to incriminate the methods of
terroristic anarchism.

															[ Footnote 3/3 ]

															Elementary texts amplify the theory and practice of these
movements which must be greatly oversimplified in this opinion. See Anarchism, 2 Encyc.Soc.Sci. 46; Nihilism, 11
Encyc.Soc.Sci. 377.

															[ Footnote 3/4 ] Spies v. Illinois, 122 Ill. 1, 12 N.E. 865, 17 N.E.
898.

															[ Footnote 3/5 ]

															Prof. Beard demonstrates this antithesis by quoting the Russian
anarchist leader Bakunin, as follows:

															"'Marx is an authoritarian and centralizing communist. He wishes
what we wish: the complete triumph of economic and social equality,
however, within the state and through the power of the state,
through the dictatorship of a very strong and, so to speak,
despotic provisional government, that is, by the negation of
liberty. His economic ideal is the state as the sole owner of land
and capital, tilling the soil by means of agricultural
associations, under the management of its engineers, and directing
through the agency of capital all industrial and commercial
associations."

															"'We demand the same triumph of economic and social equality
through the abolition of the state and everything called juridical
right, which is according to our view the permanent negation of
human right. We wish the reconstruction of society and the
establishment of the unity of mankind not from above downward
through authority, through socialistic officials, engineers and
public technicians, but from below upward through the voluntary
federation of labor associations of all kinds emancipated entirely
from the yoke of the state.'"

															Beard, Individualism and Capitalism, 1 Encyc.Soc.Sci. 145,
158.

															[ Footnote 3/6 ]

															For methods and objects of infiltration of labor unions, see
American Communications Assn. v. Douds, 339 U.
S. 382 , 339 U. S.
422 .

															[ Footnote 3/7 ]

															The Czar's government, in February, 1917, literally gave up,
almost without violence, to the Provisional Government because it
was ready to fall apart from its corruption, ineptitude,
superstition, oppression and defeat. The revolutionary parties had
little to do with this, and regarded it as a bourgeoisie triumph.
Lenin was an exile in Switzerland, Trotsky in the United States,
and Stalin was in Siberia. The Provisional Government attempted to
continue the war against Germany, but it, too, was unable to solve
internal problems, and its Galician campaign failed with heavy
losses. By October, its prestige and influence sank so low that it
could not continue. Meanwhile, Lenin and Trotsky had returned and
consolidated the Bolshevik position around the Soviets, or trade
unions. They simply took over power in an almost bloodless
revolution between October 25 and November 7, 1917. That Lenin and
Trotsky represented only a minority was demonstrated in November
elections, in which the Bolsheviks secured less than a quarter of
the seats. Then began the series of opportunistic movements to
entrench themselves in power. Faced by invasion of the allies, by
counterrevolution, and the attempted assassination of Lenin,
terrorism was resorted to on a large scale, and all the devices of
the Czar's police state were reestablished. See 1 Carr,
The Bolshevik Revolution 1917-1923, 99-110, and Moore, Soviet
Politics -- The Dilemma of Power, 117-139.

															[ Footnote 3/8 ]

															Duchacek, The Strategy of Communist Infiltration:
Czechoslovakia, 1944-1948, World Politics, Vol. II, No. 3 (April
1950) 345-372, and The February Coup in Czechoslovakia, id., July, 1950, 511-532; see also Kertesz, The
Methods of Communist Conquest: Hungary, 1944-1947, id., October 1950, 20-54; Lasswell, The Strategy of Soviet Propaganda,
24 Acad.Pol.Sci.Proc. 214, 221. See also Friedman, The
Break-up of Czech Democracy.

															[ Footnote 3/9 ] Schenck v. United States, 249 U. S.
47 . This doctrine has been attacked as one which "annuls
the most significant purpose of the First Amendment. It destroys
the intellectual basis of our plan of self-government." Meiklejohn,
Free Speech And Its Relation to Self-Government, 29. It has been
praised:

															"The concept of freedom of speech received for the first time an
authoritative judicial interpretation in accord with the purpose of
the framers of the Constitution."

															Chafee, Free Speech in the United States, 82. In either event,
it is the only original judicial thought on the subject, all later
cases having made only extensions of its application. All agree
that it means something very important, but no two seem to agree on
what it is. See concurring opinion, MR. JUSTICE
FRANKFURTER, Kovacs v. Cooper, 336 U. S.
77 , 336 U. S.
89 .

															[ Footnote 3/10 ] Gitlow v. New York, 268 U. S. 652 ; Whitney v. California, 274 U. S. 357 .
Holmes' comment on the former, in his letters to Sir Frederick
Pollock of June 2 and 18, 1925, as "a case in which conscience and
judgment are a little in doubt," and description of his dissent as
one "in favor of the rights of an anarchist (so-called) to talk
drool in favor of the proletarian dictatorship" show the tentative
nature of his test, even as applied to a trivial case.
Holmes-Pollock Letters (Howe ed.1946).

															[ Footnote 3/11 ]

															So characterized by Mr. Justice Brandeis in Schaefer v.
United States, 251 U. S. 466 , 251 U. S.
482 .

															[ Footnote 3/12 ]

															Recent cases have pushed the "clear and present danger" doctrine
to greater extremes. While Mr. Justice Brandeis said only that the
evil to be feared must be "imminent" and "relatively serious," Whitney v. California, 274 U. S. 357 , 274 U. S. 376 and 274 U. S. 377 ,
more recently it was required

															"that the substantive evil must be extremely serious
and the degree of imminence extremely high before
utterances can be punished." Bridges v. California, 314 U.
S. 252 , 314 U. S. 263 .
(Italics supplied.) Schneiderman v. United States, 320 U.
S. 118 , overruled earlier holdings that the courts could
take judicial notice that the Communist Party does advocate
overthrow of the Government by force and violence. This Court
reviewed much of the basic Communist literature that is before us
now, and held that it was within "the area of allowable thought," id. at 320 U. S. 139 ,
that it does not show lack of attachment to the Constitution, and
that success of the Communist Party would not necessarily mean the
end of representative government. The Court declared further
that

															"[a] tenable conclusion from the foregoing is that the Party, in
1927, desired to achieve its purpose by peaceful and democratic
means, and, as a theoretical matter, justified the use of force and
violence only as a method of preventing an attempted forcible
counter-overthrow once the Party had obtained control in a peaceful
manner, or as a method of last resort to enforce the majority will
if at some indefinite future time because of peculiar circumstances
constitutional or peaceful channels were no longer open." Id. at 320 U. S. 157 .
Moreover, the Court considered that this

															"mere doctrinal justification or prediction of the use of force
under hypothetical conditions at some indefinite future time --
prediction that is not calculated or intended to be presently acted
upon. . . ." ibid., was within the realm of free speech. A dissent
by Mr. Chief Justice Stone, for himself and Justices Roberts and
Frankfurter, challenged these naive conclusions, as they did again
in Bridges v. Wixon, 326 U. S. 135 , in
which the Court again set aside an Attorney General's deportation
order. Here, Mr. Justice Murphy, without whom there would not have
been a majority for the decision, speaking for himself in a
concurring opinion, pronounced the whole deportation statute
unconstitutional, as applied to Communists, under the "clear and
present danger test," because

															"Not the slightest evidence was introduced to show that either
Bridges or the Communist Party seriously and imminently threatens
to uproot the Government by force or violence."

															326 U.S. at 326 U. S.
165 .

															[ Footnote 3/13 ]

															These dangers were more fully set out in Krulewitch v.
United States, 336 U. S. 440 , 336 U. S.
445 .

															[ Footnote 3/14 ]

															Miller on Criminal Law, 110. Similar reasons have been
reiterated by this Court. United States v. Rabinowich, 238 U. S. 78 , 238 U. S. 88 ; Pinkerton v. United States, 328 U.
S. 640 , 328 U. S.
643 -644.

															[ Footnote 3/15 ]

															The defendants have had the benefit so far in this case of all
the doubts and confusions afforded by attempts to apply the "clear
and present danger" doctrine. While I think it has no proper
application to the case, these efforts have been in response to
their own contentions and favored, rather than prejudiced, them.
There is no call for reversal on account of it.

															[ Footnote 3/16 ]

															The pathetically ineffective efforts of free European states to
overcome feebleness of the Executive and decomposition of the
Legislative branches of government by legal proscriptions are
reviewed in Loewenstein, Legislative Control of Political Extremism
in European Democracies, 38 Col.L.Rev. 591, 725 (1938). The Nazi
Party seizure of power in Germany occurred while both it and its
Communist counterpart were under sentence of illegality from the
courts of the Weimar Republic. The German Criminal Code struck
directly at the disciplinary system of totalitarian parties. It
provided:

															"The participation in an organization the existence,
constitution, or purposes of which are to be kept secret from the
Government, or in which obedience to unknown superiors or
unconditional obedience to known superiors is pledged, is
punishable by imprisonment up to six months for the members and
from one month to one year for the founders and officers. Public
officials may be deprived of the right to hold public office for a
period of from one to five years."

															2 Nazi Conspiracy and Aggression (GPO 1946) 11. The Czar's
government of Russia fell while the Communist leaders were in
exile. See 341
U.S. 494 fn3/7|>n. 7. Instances of similar failures could be
multiplied indefinitely.

															MR. JUSTICE BLACK, dissenting.

															Here again, as in Breard v. Alexandria, post, p. 341 U. S. 622 ,
decided this day, my basic disagreement with the Court is not as to
how we should explain or reconcile what was said in prior
decisions, but springs from a fundamental difference in
constitutional approach. Consequently, it would serve no useful
purpose to state my position at length.

															At the outset, I want to emphasize what the crime involved in
this case is, and what it is not. These petitioners were not
charged with an attempt to overthrow the Government. They were not
charged with overt acts of any kind designed to overthrow the
Government. They were not even charged with saying anything or
writing anything designed to overthrow the Government. The charge
was that they agreed to assemble and to talk and publish certain
ideas at a later date: the indictment is that they conspired to
organize the Communist Party and to use speech or newspapers and
other publications in the future to teach and advocate the forcible
overthrow of the Government. No matter how it is worded, this is a
virulent form of prior censorship of speech and press, which I
believe the First Amendment forbids. I would hold § 3 of the Smith
Act authorizing this prior restraint unconstitutional on its face
and as applied.

															But let us assume, contrary to all constitutional ideas of fair
criminal procedure, that petitioners, although not indicted for the
crime of actual advocacy, may be punished for it. Even on this
radical assumption, the other opinions in this case show that the
only way to affirm Page 341 U. S. 580 these convictions is to repudiate directly or indirectly the
established "clear and present danger" rule. This the Court does in
a way which greatly restricts the protections afforded by the First
Amendment. The opinions for affirmance indicate that the chief
reason for jettisoning the rule is the expressed fear that advocacy
of Communist doctrine endangers the safety of the Republic.
Undoubtedly a governmental policy of unfettered communication of
ideas does entail dangers. To the Founders of this Nation, however,
the benefits derived from free expression were worth the risk. They
embodied this philosophy in the First Amendment's command that
"Congress shall make no law . . . abridging the freedom of speech,
or of the press. . . ." I have always believed that the First
Amendment is the keystone of our Government, that the freedoms it
guarantees provide the best insurance against destruction of all
freedom. At least as to speech in the realm of public matters, I
believe that the "clear and present danger" test does not "mark the
furthermost constitutional boundaries of protected expression," but
does "no more than recognize a minimum compulsion of the Bill of
Rights." Bridges v. California, 314 U.
S. 252 , 314 U. S.
263 .

															So long as this Court exercises the power of judicial review of
legislation, I cannot agree that the First Amendment permits us to
sustain laws suppressing freedom of speech and press on the basis
of Congress' or our own notions of mere "reasonableness." Such a
doctrine waters down the First Amendment so that it amounts to
little more than an admonition to Congress. The Amendment as so
construed is not likely to protect any but those "safe" or orthodox
views which rarely need its protection. I must also express my
objection to the holding because, as MR. JUSTICE DOUGLAS dissent
shows, it sanctions the determination of a crucial issue of fact by
the judge, rather than by the jury. Nor can I let this
opportunity Page 341 U. S. 581 pass without expressing my objection to the severely limited
grant of certiorari in this case which precluded consideration here
of at least two other reasons for reversing these convictions: (1)
the record shows a discriminatory selection of the jury panel which
prevented trial before a representative cross-section of the
community; (2) the record shows that one member of the trial jury
was violently hostile to petitioners before and during the
trial.

															Public opinion being what it now is, few will protest the
conviction of these Communist petitioners. There is hope, however,
that, in calmer times, when present pressures, passions and fears
subside, this or some later Court will restore the First Amendment
liberties to the high preferred place where they belong in a free
society.

															MR. JUSTICE DOUGLAS, dissenting.

															If this were a case where those who claimed protection under the
First Amendment were teaching the techniques of sabotage, the
assassination of the President, the filching of documents from
public files, the planting of bombs, the art of street warfare, and
the like, I would have no doubts. The freedom to speak is not
absolute; the teaching of methods of terror and other seditious
conduct should be beyond the pale along with obscenity and
immorality. This case was argued as if those were the facts. The
argument imported much seditious conduct into the record. That is
easy, and it has popular appeal, for the activities of Communists
in plotting and scheming against the free world are common
knowledge. But the fact is that no such evidence was introduced at
the trial. There is a statute which makes a seditious conspiracy
unlawful. [ Footnote 4/1 ]
Petitioners, however, were not Page 341 U. S. 582 charged with a "conspiracy to overthrow" the Government. They
were charged with a conspiracy to form a party and groups and
assemblies of people who teach and advocate the overthrow of our
Government by force or violence and with a conspiracy to advocate
and teach its overthrow by force and violence. [ Footnote 4/2 ] It may well be that indoctrination in
the techniques of terror to destroy the Government would be
indictable under either statute. But the teaching which is
condemned here is of a different character.

															So far as the present record is concerned, what petitioners did
was to organize people to teach and themselves teach the
Marxist-Leninist doctrine contained chiefly in four books:
[ Footnote 4/3 ] Stalin, Foundations
of Leninism (1924); Marx and Engels, Manifesto of the Communist
Party (1848); Lenin, The State and Revolution (1917); History of
the Communist Party of the Soviet Union (B.) (1939).

															Those books are to Soviet Communism what Mein Kampf was to
Nazism. If they are understood, the ugliness of Communism is
revealed, its deceit and cunning are exposed, the nature of its
activities becomes apparent, and the chances of its success less
likely. That is not, of course, the reason why petitioners chose
these books for their classrooms. They are fervent Communists to
whom these volumes are gospel. They preached the creed with the
hope that some day it would be acted upon. Page 341 U. S. 583 The opinion of the Court does not outlaw these texts nor condemn
them to the fire, as the Communists do literature offensive to
their creed. But if the books themselves are not outlawed, if they
can lawfully remain on library shelves, by what reasoning does
their use in a classroom become a crime? It would not be a crime
under the Act to introduce these books to a class, though that
would be teaching what the creed of violent overthrow of the
Government is. The Act, as construed, requires the element of
intent -- that those who teach the creed believe in it. The crime
then depends not on what is taught, but on who the teacher is. That
is to make freedom of speech turn not on what is said, but
on the intent with which it is said. Once we start down that road,
we enter territory dangerous to the liberties of every citizen.

															There was a time in England when the concept of constructive
treason flourished. Men were punished not for raising a hand
against the king, but for thinking murderous thoughts about him.
The Framers of the Constitution were alive to that abuse, and took
steps to see that the practice would not flourish here. Treason was
defined to require overt acts -- the evolution of a plot against
the country into an actual project. The present case is not one of
treason. But the analogy is close when the illegality is made to
turn on intent, not on the nature of the act. We then start probing
men's minds for motive and purpose; they become entangled in the
law not for what they did, but for what they thought; they
get convicted not for what they said, but for the purpose with
which they said it.

															Intent, of course, often makes the difference in the law. An act
otherwise excusable or carrying minor penalties may grow to an
abhorrent thing if the evil intent is present. We deal here,
however, not with ordinary acts, but with speech, to which the
Constitution has given a special sanction. Page 341 U. S. 584 The vice of treating speech as the equivalent of overt acts of a
treasonable or seditious character is emphasized by a concurring
opinion, which, by invoking the law of conspiracy, makes speech do
service for deeds which are dangerous to society. The doctrine of
conspiracy has served divers and oppressive purposes, and, in its
broad reach, can be made to do great evil. But never until today
has anyone seriously thought that the ancient law of conspiracy
could constitutionally be used to turn speech into seditious
conduct. Yet that is precisely what is suggested. I repeat that we
deal here with speech alone, not with speech plus acts of sabotage
or unlawful conduct. Not a single seditious act is charged in the
indictment. To make a lawful speech unlawful because two men
conceive it is to raise the law of conspiracy to appalling
proportions. That course is to make a radical break with the past
and to violate one of the cardinal principles of our constitutional
scheme.

															Free speech has occupied an exalted position because of the high
service it has given our society. Its protection is essential to
the very existence of a democracy. The airing of ideas releases
pressures which otherwise might become destructive. When ideas
compete in the market for acceptance, full and free discussion
exposes the false, and they gain few adherents. Full and free
discussion even of ideas we hate encourages the testing of our own
prejudices and preconceptions. Full and free discussion keeps a
society from becoming stagnant and unprepared for the stresses and
strains that work to tear all civilizations apart.

															Full and free discussion has indeed been the first article of
our faith. We have founded our political system on it. It has been
the safeguard of every religious, political, philosophical,
economic, and racial group amongst us. We have counted on it to
keep us from embracing what is cheap and false; we have trusted the
common sense of our Page 341 U. S. 585 people to choose the doctrine true to our genius and to reject
the rest. This has been the one single outstanding tenet that has
made our institutions the symbol of freedom and equality. We have
deemed it more costly to liberty to suppress a despised minority
than to let them vent their spleen. We have above all else feared
the political censor. We have wanted a land where our people can be
exposed to all the diverse creeds and cultures of the world.

															There comes a time when even speech loses its constitutional
immunity. Speech innocuous one year may at another time fan such
destructive flames that it must be halted in the interests of the
safety of the Republic. That is the meaning of the clear and
present danger test. When conditions are so critical that there
will be no time to avoid the evil that the speech threatens, it is
time to call a halt. Otherwise, free speech which is the strength
of the Nation will be the cause of its destruction.

															Yet free speech is the rule, not the exception. The restraint to
be constitutional must be based on more than fear, on more than
passionate opposition against the speech, on more than a revolted
dislike for its contents. There must be some immediate injury to
society that is likely if speech is allowed. The classic statement
of these conditions was made by Mr. Justice Brandeis in his
concurring opinion in Whitney v. California, 274 U.
S. 357 , 274 U. S.
376 -377,

															"Fear of serious injury cannot alone justify suppression of free
speech and assembly. Men feared witches and burnt women. It is the
function of speech to free men from the bondage of irrational
fears. To justify suppression of free speech, there must be
reasonable ground to fear that serious evil will result if free
speech is practiced. There must be reasonable ground to believe
that the danger apprehended Page 341 U. S. 586 is imminent. There must be reasonable ground to believe that the
evil to be prevented is a serious one. Every denunciation of
existing law tends in some measure to increase the probability that
there will be violation of it. Condonation of a breach enhances the
probability. Expressions of approval add to the probability.
Propagation of the criminal state of mind by teaching syndicalism
increases it. Advocacy of law-breaking heightens it still further.
But even advocacy of violation, however reprehensible morally, is
not a justification for denying free speech where the advocacy
falls short of incitement and there is nothing to indicate that the
advocacy would be immediately acted on. The wide difference between
advocacy and incitement, between preparation and attempt, between
assembling and conspiracy, must be borne in mind. In order to
support a finding of clear and present danger, it must be shown
either that immediate serious violence was to be expected or was
advocated, or that the past conduct furnished reason to believe
that such advocacy was then contemplated."

															"Those who won our independence by revolution were not cowards.
They did not fear political change. They did not exalt order at the
cost of liberty. To courageous, self-reliant men, with confidence
in the power of free and fearless reasoning applied through the
processes of popular government, no danger flowing from speech can
be deemed clear and present unless the incidence of the evil
apprehended is so imminent that it may befall before there is
opportunity for full discussion. If there be time to expose
through discussion the falsehood and fallacies, to avert the evil
by the processes of education, the remedy to be applied is more
speech, not enforced silence. "

															(Italics added.) Page 341 U. S. 587 I had assumed that the question of the clear and present danger,
being so critical an issue in the case, would be a matter for
submission to the jury. It was squarely held in Pierce v.
United States, 252 U. S. 239 , 252 U. S. 244 ,
to be a jury question. Mr. Justice Pitney, speaking for the Court,
said,

															"Whether the statement contained in the pamphlet had a natural
tendency to produce the forbidden consequences, as alleged, was a
question to be determined not upon demurrer, but by the jury at the
trial."

															That is the only time the Court has passed on the issue. None of
our other decisions is contrary. Nothing said in any of the nonjury
cases has detracted from that ruling. [ Footnote 4/4 ] The statement in Pierce v. United
States, supra, states the law as it has been, and as it should
be. The Court, I think, errs when it treats the question as one of
law.

															Yet, whether the question is one for the Court or the jury,
there should be evidence of record on the issue. This record,
however, contains no evidence whatsoever showing that the acts
charged, viz., the teaching of the Soviet theory of
revolution with the hope that it will be realized, have created any
clear and present danger to the Nation. The Court, however, rules
to the contrary. It says,

															"The formation by petitioners of such a highly organized
conspiracy, with rigidly disciplined members subject to call when
the leaders, these petitioners, felt that the time had come for
action, coupled with the inflammable nature of world conditions,
similar uprisings in other countries, and the touch-and-go nature
of our relations with countries with whom petitioners were in the
very least ideologically attuned, convince us that their
convictions were justified on this score."

															That ruling is, in my view, not responsive to the issue in the
case. We might as well say that the speech of Page 341 U. S. 588 petitioners is outlawed because Soviet Russia and her Red Army
are a threat to world peace.

															The nature of Communism as a force on the world scene would, of
course, be relevant to the issue of clear and present danger of
petitioners' advocacy within the United States. But the primary
consideration is the strength and tactical position of petitioners
and their converts in this country. On that, there is no evidence
in the record. If we are to take judicial notice of the threat of
Communists within the nation, it should not be difficult to
conclude that, as a political party, they are of little
consequence. Communists in this country have never made a
respectable or serious showing in any election. I would doubt that
there is a village, let alone a city or county or state, which the
Communists could carry. Communism in the world scene is no
bogeyman; but Communism as a political faction or party in this
country plainly is. Communism has been so thoroughly exposed in
this country that it has been crippled as a political force. Free
speech has destroyed it as an effective political party. It is
inconceivable that those who went up and down this country
preaching the doctrine of revolution which petitioners espouse
would have any success. In days of trouble and confusion, when
bread lines were long, when the unemployed walked the streets, when
people were starving, the advocates of a short-cut by revolution
might have a chance to gain adherents. But today there are no such
conditions. The country is not in despair; the people know Soviet
Communism; the doctrine of Soviet revolution is exposed in all of
its ugliness, and the American people want none of it.

															How it can be said that there is a clear and present danger that
this advocacy will succeed is, therefore, a mystery. Some nations
less resilient than the United States, where illiteracy is high and
where democratic traditions are only budding, might have to take
drastic Page 341 U. S. 589 steps and jail these men for merely speaking their creed. But in
America, they are miserable merchants of unwanted ideas; their
wares remain unsold. The fact that their ideas are abhorrent does
not make them powerful.

															The political impotence of the Communists in this country does
not, of course, dispose of the problem. Their numbers; their
positions in industry and government; the extent to which they
have, in fact, infiltrated the police, the armed services,
transportation, stevedoring, power plants, munitions works, and
other critical places -- these facts all bear on the likelihood
that their advocacy of the Soviet theory of revolution will
endanger the Republic. But the record is silent on these facts. If
we are to proceed on the basis of judicial notice, it is impossible
for me to say that the Communists in this country are so potent or
so strategically deployed that they must be suppressed for their
speech. I could not so hold unless I were willing to conclude that
the activities in recent years of committees of Congress, of the
Attorney General, of labor unions, of state legislatures, and of
Loyalty Boards were so futile as to leave the country on the edge
of grave peril. To believe that petitioners and their following are
placed in such critical positions as to endanger the Nation is to
believe the incredible. It is safe to say that the followers of the
creed of Soviet Communism are known to the FBI; that, in case of
war with Russia, they will be picked up overnight, as were all
prospective saboteurs at the commencement of World War II; that the
invisible army of petitioners is the best known, the most beset,
and the least thriving of any fifth column in history. Only those
held by fear and panic could think otherwise.

															This is my view if we are to act on the basis of judicial
notice. But the mere statement of the opposing views indicates how
important it is that we know the facts before we act. Neither
prejudice nor hate nor senseless Page 341 U. S. 590 fear should be the basis of this solemn act. Free speech -- the
glory of our system of government -- should not be sacrificed on
anything less that plain and objective proof of danger that the
evil advocated is imminent. On this record, no one can say that
petitioners and their converts are in such a strategic position as
to have even the slightest chance of achieving their aims.

															The First Amendment provides that "Congress shall make no law .
. . abridging the freedom of speech." The Constitution provides no
exception. This does not mean, however, that the Nation need hold
its hand until it is in such weakened condition that there is no
time to protect itself from incitement to revolution. Seditious
conduct can always be punished. But the command of the First
Amendment is so clear that we should not allow Congress to call a
halt to free speech except in the extreme case of peril from the
speech itself. The First Amendment makes confidence in the common
sense of our people and in their maturity of judgment the great
postulate of our democracy. Its philosophy is that violence is
rarely, if ever, stopped by denying civil liberties to those
advocating resort to force. The First Amendment reflects the
philosophy of Jefferson

															"that it is time enough for the rightful purposes of civil
government for its officers to interfere when principles break out
into overt acts against peace and good order. [ Footnote 4/5 ]"

															The political censor has no place in our public debates. Unless
and until extreme and necessitous circumstances are shown, our aim
should be to keep speech unfettered and to allow the processes Page 341 U. S. 591 of law to be invoked only when the provocateurs among us move
from speech to action.

															Vishinsky wrote in 1938 in The Law of the Soviet State, "In our
state, naturally, there is and can be no place for freedom of
speech, press, and so on for the foes of socialism."

															Our concern should be that we accept no such standard for the
United States. Our faith should be that our people will never give
support to these advocates of revolution, so long as we remain
loyal to the purposes for which our Nation was founded.

															| 341
U.S. 494 app2| APPENDIX TO OPINION OF MR. JUSTICE DOUGLAS. There have been numerous First Amendment cases before the Court
raising the issue of clear and present danger since Mr. Justice
Holmes first formulated the test in Schenck v. United
States, 249 U. S. 47 , 249 U. S. 52 .
Most of them, however, have not involved jury trials.

															The cases which may be deemed at all relevant to our problem can
be classified as follows:

															CONVICTIONS FOR CONTEMPT OF COURT (NON-JURY): Near v.
Minnesota, 283 U. S. 697 ; Bridges v. California, 314 U. S. 252 ; Thomas v. Collins, 323 U. S. 516 ; Pennekamp v. Florida, 328 U. S. 331 ; Craig v. Harney, 331 U. S. 367 .

															CONVICTIONS BY STATE COURTS SITTING WITHOUT JURIES, GENERALLY
FOR VIOLATIONS OF LOCAL ORDINANCES: Lovell v. Griffin, 303 U. S. 444 ; Schneider v. State, 308 U. S. 147 ; Cantwell v. Connecticut, 310 U. S. 296 ; Marsh v. Alabama, 326 U. S. 501 ; Tucker v. Texas, 326 U. S. 517 ; Winters v. New York, 333 U. S. 507 ; Saia v. New York, 334 U. S. 558 ; Kovacs v. Cooper, 336 U. S. 77 ; Kunz v. New York, 340 U. S. 290 ; Feiner v. New York, 340 U. S. 315 .

															INJUNCTIONS AGAINST ENFORCEMENT OF STATE OR LOCAL LAWS
(NON-JURY): Grosjean v. American Press
Co. , 297 Page 341 U. S. 592 U.S. 233; Hague v. CIO, 307 U.
S. 496 ; Minersville School District v. Gobitis, 310 U. S. 586 ; West Virginia Board of Education v. Barnette, 319 U.
S. 624 .

															ADMINISTRATIVE PROCEEDINGS (NON-JURY): Bridges v.
Wixon, 326 U. S. 135 ; Schneiderman v. United States, 320 U.
S. 118 ; American Communications Association v.
Douds, 339 U. S. 382 .

															CASES TRIED BEFORE JURIES FOR VIOLATIONS OF STATE LAWS DIRECTED
AGAINST ADVOCACY OF ANARCHY, CRIMINAL SYNDICALISM, ETC.: Gilbert v. Minnesota, 254 U. S. 325 ; Gitlow v. New York, 268 U. S. 652 ; Whitney v. California, 274 U. S. 357 ; Fiske v. Kansas, 274 U. S. 380 ; Stromberg v. California, 283 U. S. 359 ; De Jonge v. Oregon, 299 U. S. 353 ; Herndon v. Lowry, 301 U. S. 242 ; Taylor v. Mississippi, 319 U. S. 583 ; or
for minor local offenses: Cox v. New Hampshire, 312 U. S. 569 ; Chaplinsky v. New Hampshire, 315 U.
S. 568 ; Terminiello v. Chicago, 337 U. S.
1 ; Niemotko v. Maryland, 340 U.
S. 268 .

															FEDERAL PROSECUTIONS BEFORE JURIES UNDER THE ESPIONAGE ACT OF
1917 FOLLOWING WORLD WAR I: Schenck v. United States, 249 U. S. 47 ; Frohwerk v. United States, 249 U.
S. 204 ; Debs v. United States, 249 U.
S. 211 ; Abrams v. United States, 250 U.
S. 616 ; Schaefer v. United States, 251 U.
S. 466 ; Pierce v. United States, 252 U.
S. 239 . Pierce v. United States ruled that the
question of clear and present danger was for the jury. In the other
cases in this group the question whether the issue was for the
court or the jury was not raised or passed upon.

															FEDERAL PROSECUTION BEFORE A JURY UNDER THE ESPIONAGE ACT OF 117
FOLLOWING WORLD WAR II: Hartzel v. United States, 322 U. S. 680 . The
jury was instructed on clear and present danger in terms drawn from
the language of Mr. Justice Holmes in Schenck v. United States,
supra, p. 249 U. S. 52 .
The Court reversed the conviction on the ground that there had not
been sufficient evidence for submission of the case to the
jury.

															[ Footnote 4/1 ]

															18 U.S.C. § 2384 provides:

															"If two or more persons in any State or Territory, or in any
place subject to the jurisdiction of the United States, conspire to
overthrow, put down, or to destroy by force the Government of the
United States, or to levy war against them, or to oppose by force
the authority thereof, or by force to prevent, hinder, or delay the
execution of any law of the United States, or by force to seize,
take, or possess any property of the United States contrary to the
authority thereof, they shall each be fined not more than $5,000 or
imprisoned not more than six years, or both."

															[ Footnote 4/2 ]

															54 Stat. 671, 18 U.S.C. §§ 10, 11.

															[ Footnote 4/3 ]

															Other books taught were Stalin, Problems of Leninism, Strategy
and Tactics of World Communism (H.R.Doc. No. 619, 80th Cong., 2d
Sess.), and Program of the Communist International.

															[ Footnote 4/4 ]

															The cases which reached the Court are analyzed in the Appendix
attached to this opinion, post, p. 341 U. S.
591 .

															[ Footnote 4/5 ]

															12 Hening's Stat. (Virginia 1823), c. 34, p. 84. Whipple, Our
Ancient Liberties (1927), p. 95, states:

															"This idea that the limit on freedom of speech or press should
be set only by an actual overt act was not new. It had been
asserted by a long line of distinguished thinkers, including John
Locke, Montesquieu in his The Spirit of the Laws ('Words
do not constitute an overt act'), the Rev. Phillip Furneaux, James
Madison, and Thomas Jefferson."

Summary: In Dennis v. United States (1951), the Supreme Court upheld the constitutionality of the Smith Act, which criminalized advocating for the overthrow of the US government. The Court found that the First Amendment doesn't protect speech that presents a "clear and present danger," and that the Smith Act's prohibition on advocating for violent revolution fell within this category. The Court also rejected vagueness challenges to the Act, stating that its terms were sufficiently clear. This case set a precedent for restricting speech that poses a potential threat to national security.