Dennis v. United States

Following is the case brief for Dennis v. United States, 341 U.S. 494 (1951)

Case Summary of Dennis v. United States:

  • Petitioners were charged and convicted under the Smith Act for advocating the overthrow of the Government by force or violence.  Petitioners were organizing meetings of Communist members.
  • Petitioners challenged the Smith Act on First Amendment grounds.
  • The Court of Appeals affirmed the convictions.
  • The U.S. Supreme Court affirmed as well, holding that speech can be prosecutable under the Smith Act if the speech creates a “clear and present danger” that criminal activity will follow.

Dennis v. United States Case Brief

Statement of the Facts:

The Smith Act made it a crime for anyone to knowingly advocate the overthrow or destruction of the Government of the United States by force or violence, to organize any group to do the same, or to conspire to do the same.  The petitioners in this case were leaders of the Communist Party in the U.S., and they were indicted for violations of the Smith Act.  Specifically, they were alleged to have conspired to organize a group to teach and advocate the overthrow of the government.

Procedural History:

  • Petitioners were found guilty by a jury.
  • The Second Circuit Court of Appeals affirmed the convictions.
  • The U.S. Supreme Court granted certiorari.

Issue and Holding:

Did the Smith Act, making it a crime to advocate for the overthrow of the government by force, violate the First Amendment?  No.


The decision of the Second Circuit Court of Appeals is affirmed.

Rule of Law or Legal Principle Applied:

Where a statute speaks in non-speech terms, a conviction relying upon speech as evidence can be sustained only when the speech created a “clear and present” danger of attempting or accomplishing the prohibited crime.


A plurality of the Court reasoned as follows:  In this case, the evidence presented at trial established sufficient danger of activity to warrant the convictions.  Just because, in a three-year period, the petitioners’ activities did not result in an attempt to overthrow the government does not mean that the group was not ready to make the attempt.  Petitioners formed a highly organized conspiracy with rigidly disciplined members.  The existence of the conspiracy here created the danger.

Further, the Smith Act is not intended to eradicate the free discussion of political theories, rather it is focused on activity directed at the overthrow of the government by force.  Therefore, the Smith Act does not violate the First Amendment or the other Bill of Rights, and it does not violate the First or Fifth Amendments for indefiniteness.

Concurring and Dissenting Opinions:

Concurring Opinion (Frankfurter):

This case presents a conflict point between freedom of speech and national security.  The three principles that arise from the Court’s precedents are (i) free speech cases do not call upon the Court to be legislators, (ii) the “clear and present danger” test includes an analysis of many factors, and (iii) not all speech is protected.

Concurring Opinion (Jackson):

This case is yet another in the impossible task of trying to find a balance between security and liberty.  Because Congress has the power to enact the Smith Act, it cannot be held unconstitutional.  There is little hope, however, that the prosecution here will stop the rise of the Communist movement.

Dissenting Opinion (Black):

The crime in this case was that petitioners “agreed to assemble and to talk and publish certain ideas at a later date.”  That is simply a virulent form of prior censorship of speech, which the First Amendment forbids.

Dissenting Opinion (Douglas):

If this were a case about teaching sabotage or the assassination of the President, then this prosecution would have merit.  However, petitioners were charged with a conspiracy to form a party and groups of people to teach Communist doctrine, not a “conspiracy to overthrow” the government.  We should not censor that which is protected speech under the First Amendment.


Dennis v. United States is another iteration of the “clear and present danger” test.  While that test is largely out of use by the modern Court, it provides perspective on the evolution of the Court’s First Amendment jurisprudence.

Student Resources:

Read the Full Court Opinion