Dennis v. United States
341 U.S. 494 (1951)

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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


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 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.

Primary Holding

Convicting a defendant of a non-speech related offense based on speech is permissible only if the speech created a clear and present danger that the crime would be attempted or perpetrated.


Dennis was convicted of conspiring with other Communist Party leaders to overthrow the government by force or violence under the Smith Act. This law generally prohibited any conspiracy to advocate or teach the overthrow of the government by force or violence or to organize people to perform such advocacy or teaching. The Communist Party literature and public statements clearly pursued these goals, and it was a tightly controlled, highly disciplined organization that permitted no internal dissent. It was shown to be skilled at infiltrating strategic positions as well as at using aliases and language with multiple meanings.



  • Frederick Moore Vinson (Author)
  • Stanley Forman Reed
  • Harold Hitz Burton
  • Tom C. Clark
  • Sherman Minton

The government has a compelling interest in preventing its overthrow by force or violence, so it is justified in placing some limits on speech to protect that interest, notwithstanding the First Amendment. Whether an attempt to overthrow the government poses a clear and present danger to it should not be determined according to whether such an attempt will be likely to be successful. Instead, the appropriate standard is whether the gravity of the evil, discounted by its improbability, warrants a restriction on free speech that is needed to avoid the danger. A clear and present danger existed here, taking into account the strength and sophistication of the organization as well as the unstable nature of governments around the world, tensions between the U.S. and Communist countries, and recent revolutions abroad in similar situations.


  • Hugo Lafayette Black (Author)


  • William Orville Douglas (Author)


  • Felix Frankfurter (Author)


  • Robert Houghwout Jackson (Author)

Case Commentary

The clear and present danger test used in this early First Amendment decision no longer holds significant value and is largely useful from a historical perspective, showing how the doctrine in this area has evolved. It also is curious what courts have found to constitute clear and present dangers, which often seem relatively harmless in hindsight.

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