• Last updated on November 11, 2022

The Supreme Court upheld the convictions of Communist Party members under the 1940 Smith Act, which led to more vigorous prosecution of alleged communists in the 1950’s.

Chief Justice Fred M. VinsonVinson, Fred M.;Dennis v. United States[Dennis v. United States] wrote the 6-2 majority decision (Justice Tom C. Clark did not participate) in which the Supreme Court upheld the convictions of eleven Communist Party leaders for violating the 1940 Smith Act by teaching or advocating the “violent overthrow of the U.S. government.” Although the Smith Act had always been aimed at communists, the U.S. government had avoided confrontation with the Soviet Union, a World War II ally. As the Cold War Cold Warbegan, Republicans and Democrats began to compete with each other to prove their anticommunist fervor. A seriously flawed trial led to the conviction of the eleven party members. The circuit court of appeals upheld their conviction, and the Court agreed to hear the case solely on the question of the Smith Act’s constitutionality, thereby eliminating many grounds for reversal. However, the tenor of the times and recent changes in the composition of the Court largely appointed by Franklin D. Roosevelt made it likely that the anticommunist legislation would have been upheld in any case.CommunismSmith ActAssembly and association, freedom of;Dennis v. United States[Dennis v. United States]CommunismSmith Act

Vinson significantly modified the clear and present danger test Clear and present danger testso that much less serious threats to public safety could be banned by creating a grave and probable danger standard. This view never actually achieved the status of a legal standard because only a plurality of Vinson and three others subscribed to it. Justice Robert H. Jackson rejected the modification of the clear and present danger rule but would have convicted the Communists for conspiracy anyway. Justice Felix Frankfurter disliked the Smith Act but was constrained by his view of judicial self-restraint.

Justices Hugo L. Black and William O. Douglas wrote strong dissents attacking the majority for seriously misreading the clear and present danger test and damaging freedom of speech in the United States. Because one of the activities for which the convictions were upheld was the defendants’ plan to publish a newspaper, these dissents also alleged that freedom of the press was endangered. Freed from the constraints of previous interpretations, the government began a vigorous prosecution of the Communist Party that continued until the Court’s decision in Yates v. United States[case]Yates v. United States[Yates v. United States] (1957) blunted the attack. However, Yates did not overturn Dennis or invalidate the Smith Act. The holding in Dennis is at variance with more recent decisions, but the Court never completely repudiated its grave and probable danger rule.

Bad tendency test

Brandenburg v. Ohio

Clear and present danger test

Communist Party v. Subversive Activities Control Board

Criminal syndicalism

Fifteenth Amendment

Gitlow v. New York

Scales v. United States

Schenck v. United States

Speech and press, freedom of

Yates v. United States

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