The Constitution of the United States is not a very long document. It only hints at solutions to many of the intractable and conflicting problems us Americans encounter in our experiment with liberty. So, it is with great interest that we follow the meanderings of the Supreme Court as they try, usually, but not always, with wisdom and justice in mind, to sort out what is right and what is not right within our system of rules and regulations.
In Dennis v. United States, (1951), the Supreme Court heard a case revolving around Eugene Dennis, the then General Secretary of the Communist Party USA. The Court ruled to uphold Dennis's lower court conviction, holding that that Dennis did not have the protected right under the Constitution to exercise all free speech, if said exercise involved the "creation of a plot to overthrow the government." In affirming the conviction by a 6-2 margin the Court applied Judge Learned Hand's "clear and present danger test:"
In each case courts must ask whether the gravity of the 'evil,' discounted by it improbability, justifies such invasion of free speech as necessary to avoid the danger."
Felix Frankfurter voted with the majority, and offered a concurring opinion. Full concurrence is here. Excerpts here:
"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."
"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."
"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 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."
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