341 U.S. 494 (1951)
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, for the period April 1945 to July 1948.1 A pretrial motion to quash the indictment on constitutional grounds was denied, the trial was set, and a jury returned verdicts of guilty on October 14, 1949.2
The trial lasted nine months, six devoted to evidence and producing a 16,000-page record.3 The indictment charged petitioners with knowingly and wilfully conspiring to organize the Communist Party of the United States of America as a society that teaches and advocates overthrow of the Government by force and violence.4 It also charged them with conspiracy knowingly and wilfully to advocate and teach the duty and necessity of such overthrow.5
The Court of Appeals affirmed.6 The Supreme Court granted certiorari limited to two questions: whether §§ 2 or 3 of the Smith Act, inherently or as construed and applied in this case, violate the First Amendment and other provisions of the Bill of Rights; and whether those sections, inherently or as construed and applied, violate the First and Fifth Amendments because of indefiniteness.7
The Court of Appeals held the record amply supported the jury's necessary finding that petitioners, as leaders of the Communist organization, intended violent revolution when circumstances were propitious.8 The court described the Party as highly disciplined, adept at infiltration, using aliases and double-meaning language, rigidly controlled, intolerant of dissension, and during the period in question advocating overthrow of the existing order by force and violence.9
Whether §§ 2 or 3 of the Smith Act, inherently or as construed and applied in this case, violate the First Amendment and other provisions of the Bill of Rights?10
No. The Court applied the clear and present danger test as reformulated to ask whether the gravity of the evil, discounted by its improbability, justifies the invasion of free speech necessary to avoid the danger.1314
Petitioners were indicted in July 1948 for violation of the conspiracy provisions of the Smith Act for the period April 1945 to July 1948.15 A pretrial motion to quash the indictment on constitutional grounds was denied, the trial was set, and a jury returned verdicts of guilty on October 14, 1949. The trial lasted nine months, six devoted to evidence and producing a 16,000-page record.
The indictment charged petitioners with knowingly and wilfully conspiring to organize the Communist Party of the United States of America as a society that teaches and advocates overthrow of the Government by force and violence. It also charged them with conspiracy knowingly and wilfully to advocate and teach the duty and necessity of such overthrow. The Court of Appeals affirmed.
The Court of Appeals held the record amply supported the jury's necessary finding that petitioners, as leaders of the Communist organization, intended violent revolution when circumstances were propitious. The court described the Party as highly disciplined, adept at infiltration, using aliases and double-meaning language, rigidly controlled, intolerant of dissension, and during the period in question advocating overthrow of the existing order by force and violence.
The Supreme Court granted certiorari limited to two questions concerning constitutionality.16 The statute requires proof of intent to overthrow the Government by force and violence as an essential element of the crime.17 The trial judge properly charged that the jury could not convict if petitioners did no more than pursue peaceful studies and discussions.18 The existence of the conspiracy itself creates the danger given inflammable world conditions and similar uprisings abroad.19 The Court held that when facts establishing a statutory violation are found, First Amendment protection is a matter of law for the judge.20
The Court of Appeals affirmed the convictions after finding the evidence sufficient to show petitioners intended violent revolution when circumstances were propitious.21 The Supreme Court granted certiorari but limited review to the two constitutional questions, removing any sufficiency challenge from consideration.22 The jury found petitioners intended to overthrow the Government as speedily as circumstances would permit.23 The Court concluded the conspiracy to organize the Communist Party and to teach and advocate overthrow by force and violence created a clear and present danger of an attempt at overthrow.24
Sections 2 and 3 of the Smith Act do not violate the First Amendment or other provisions of the Bill of Rights inherently or as construed and applied in this case.25
Related opinions on this issue
Justice Frankfurter concurred in affirmance of the judgment.26 He noted the jury found the advocacy was intended as a rule of action and calculated to incite persons to such action.27 He emphasized the need to weigh the individual's right to advocate political theory against the government's power to safeguard the nation, with judicial review respecting legislative judgment unless outside fair reason.28
The Communist Party was not an ordinary political party; its disciplined structure, international context, and danger of infiltration allowed Congress to conclude recruitment and organization would create substantial danger to national security.29
Justice Jackson concurred.30 He observed that the clear and present danger test was intended for cases of immediate threats and is inappropriate for organized, disciplined conspiracies that prepare over time for eventual action.31 He stressed that conspiracy may be punished apart from completion of the substantive offense because combination increases danger by its greater power and difficulty of guarding against it.32
The First Amendment does not grant conspirators immunity merely because their medium is speech used as an integral part of conduct to effect unlawful ends.33
Justice Black dissented.34 He argued the petitioners were charged with agreeing to assemble and to speak and publish at a future date to teach and advocate forcible overthrow, which constitutes a form of prior censorship the First Amendment forbids.35 He objected to repudiating the established clear-and-present-danger rule by substituting judicial reasonableness, which reduces the Amendment to an admonition to Congress and protects only safe or orthodox views.36
He also objected to treating the existence of clear and present danger as solely for the judge rather than the jury.37
Justice Douglas dissented.38 He stated the record contains no evidence showing the acts charged created any clear and present danger to the Republic, as the materials taught were classic Communist texts that on library shelves are not illegal.39 He warned that treating speech alone as conspiracy and punishing it absent overt acts broadens conspiracy law to alarming proportions and departs from constitutional tradition.40
Free speech should not be sacrificed except upon plain and objective proof of imminent danger, which is lacking here.41
Whether those sections, inherently or as construed and applied, violate the First and Fifth Amendments because of indefiniteness?42
A criminal statute is not unconstitutionally vague or indefinite under the First and Fifth Amendments when it adequately indicates the line beyond which advocacy may not go.43 This is especially true where the jury has found specific intent to overthrow the government as speedily as circumstances would permit.44
No. The Court held the phrase clear and present danger adequately indicates to those who would advocate constitutionally prohibited conduct that there is a line beyond which they may not go.45 The standard is not rendered more indefinite by an attempt to summarize the factors within its scope.46
The jury found petitioners intended to overthrow the Government as speedily as circumstances would permit, removing any vagueness concern.47 Where doubt exists as to intent, nature of activities, or power to bring about the evil, the Court will review convictions with scrupulous care, but borderline possibilities do not require reversal.48
Sections 2 and 3 of the Smith Act do not violate the First and Fifth Amendments because of indefiniteness inherently or as construed and applied in this case.49