The objectionable document denounced conscription and its most inciting sentence was, "You must do your share to maintain, support and uphold the rights of the people of this country." We then start probing men's minds for motive and purpose; they become entangled in the law not for what they did but for what they thought; they get convicted not for what they said but for the purpose with which they said it. 236 U.S. at 277-278. [341 2386. ; Whitney v. California, , was laid under an amendment to the Espionage Act which prohibited conspiracies to advocate curtailment of production of material necessary to prosecution of the war, with the intent thereby to hinder the United States in the prosecution of the war.

U.S. 88

325 But although the statute is not directed at the hypothetical cases which petitioners have conjured, its application in this case has resulted in convictions for the teaching and advocacy of the overthrow of the Government by force and violence, which, even though coupled with the intent to accomplish that overthrow, contains an element of speech.   U.S. 494, 495]. 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. United States v. Rabinowich, Schneiderman v. United States, 6. L. Rev. 1 The present case is not one of treason. Congress was concerned with those who advocate and organize for the overthrow of the Government. As in the case of every other provision of the Constitution that is not crystallized by the nature of its technical concepts, the fact that the First Amendment is not self-defining and self-enforcing neither impairs its usefulness nor compels its paralysis as a living instrument. 4.

Section 2 provided: [ 249 U.S. 494, 548] The jury found that the Party rejects the basic premise of our political system - that change is to be brought about by nonviolent constitutional process. The Provisional Government attempted to continue the war against Germany, but it, too, was unable to solve internal problems and its Galician campaign failed with heavy losses. Unless we are to hold our Government captive in a judge-made verbal trap, we must approach the problem of a well-organized, nation-wide conspiracy, such as I have That is the meaning of the clear and present danger test. 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. And, of course, the proceedings in a particular case before us must have the warrant of substantial proof. There comes a time when even speech loses its constitutional immunity. [ This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply. U.S. 331

and 377, more recently it was required "that the substantive evil must be extremely serious and the .

I repeat that we deal here with speech alone, not with speech plus acts of sabotage or unlawful conduct. The test applies and has meaning where a conviction is sought to be based on a speech or writing which does not directly or explicitly advocate a crime but to which such tendency is sought to be attributed by construction or by implication from external circumstances. U.S. 494, 566] U.S. 47 This Court reviewed much of the basic Communist literature that is before us now, and held that it was within "the area of allowable thought," id., at 139, that it does not show lack of attachment to the Constitution, and that success of the Communist Party would not necessarily mean the end of representative government. [341 Nor is it entitled to the protection of the First Amendment. (1946 ed.) ", 7. 4 136, 8 (b), 29 U.S.C.   doctrine they advocated taught that force and violence to achieve a Communist form of government in an existing democratic state would be necessary only because the ruling classes of that state would never permit the transformation to be accomplished peacefully, but would use force and violence to defeat any peaceful political and economic gain the Communists could achieve. It is on this body of the Court's pronouncements that the defendants' argument here is based.

339 321 But never until today has anyone seriously thought that the ancient law of conspiracy could constitutionally be used to turn speech into seditious conduct. Adjustment of clash of interests which are at once subtle and fundamental is not likely to reveal entire consistency in a series of instances presenting the clash. See Duniway, Freedom of the Press in Massachusetts, 144-146. U.S. 494, 547]

U.S. 454 Even historians have conflicting views to this day on the origins and conduct of the French Revolution, or, for that matter, varying interpretations of "the glorious Revolution" of 1688.

It destroys the intellectual basis of our plan of self-government." 274 In more recent times these problems have been complicated by the intervention between the state and the citizen of permanently organized, well-financed, semisecret and highly disciplined political organizations. , the editors of a German-language newspaper in Philadelphia were charged with obstructing the recruiting service and with wilfully publishing false reports with the intent to promote the success of the enemies of the United States. . [341 Meiklejohn, Free Speech, 39. But in no case has a majority of this Court held that a legislative judgment, even as to freedom of utterance, may be overturned merely because the Court would have made a different choice between the competing interests had the initial legislative judgment been for it to make. (1925). [341   U.S. 416 The distinction which the Founders drew between the Court's duty to pass on the power of Congress and its complementary duty not to enter directly the domain of policy is fundamental. Act of Feb. 5, 1917, 19, 39 Stat. [341 319 U.S. at 589-590. ; Mackenzie v. Hare, . , the indictment charged that the defendant had delivered a public speech expounding socialism and praising Socialists who had been convicted of abetting violation of the draft laws. (1927), where the Court was confronted with a conviction under the California Criminal Syndicalist statute. The precise meaning intended to be conveyed by these phrases need not now be pursued. In those cases, they were faced with convictions under so-called criminal syndicalism statutes aimed at anarchists but which, loosely construed, had been applied to punish socialism, pacifism, and left-wing ideologies, the charges often resting on farfetched
Liberty of thought soon shrivels without freedom of expression. Concerted uprising, therefore, is to await that contingency and revolution is seen, not as a sudden episode, but as the consummation of a long process.

I would doubt that there is a village, let alone a city or county or state, which the Communists could carry. ; Near v. Minnesota, Undoubtedly, a governmental policy of unfettered communication of ideas does entail dangers. Footnote 6 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.

; Missouri v. Holland, 328 U.S. 118 But in determining whether application of the statute to the defendants is within the constitutional powers of Congress, we are not limited to the facts found by the jury.

This record, however, contains no evidence whatsoever showing that the acts charged, viz., the teaching of the Soviet theory of revolution with the hope that it will be realized, have created any clear and present danger to the Nation. That such a distinction could be used unreasonably by those in power against hostile or unorthodox views does not negate the fact that it may be used reasonably against an organization wielding the power of the centrally controlled international Communist movement. 6 319 The formation

U.S. 141 U.S. 494, 590] U.S. 325 [341 Footnote 1 There can be no doubt that if the jury found those facts against the petitioners violation of the Act would be established. And in Schaefer the test was said to be one of "degree," 251 U.S. at 482, although it is not clear whether "degree" refers to clear and present danger or evil. We are not here confronted with cases similar to Thornhill v. Alabama, 255 , turned on the indefiniteness of the statutes. Nor is the incidental statement of the majority in Pierce, supra, of any more persuasive effect. The political censor has no place in our public debates.



11 Petitioners were indicted in July, 1948, for violation of the conspiracy provisions of the Smith Act, 54 Stat. Pp.   As construed and applied in this case, 2 (a) (1), 2 (a) (3) and 3 of the Smith Act, 54 Stat. The "clear and present danger" test was an innovation by Mr. Justice Holmes in the Schenck case,
The existence of a mens rea is the rule of, rather than the exception to, the principles of Anglo-American criminal jurisprudence. They were not even charged with saying anything or writing anything designed to overthrow the Government. U.S. 353 Only those held by fear and panic could think otherwise.   The opinion of the Court does not outlaw these texts nor condemn them to the fire, as the Communists do literature offensive to their creed.

We held that a State's policy against restraints of trade justified it in prohibiting picketing which violated that policy, Giboney v. Empire Storage Co., ; Mugler v. Kansas, To those who would paralyze our Government in the face of impending threat by encasing it in a semantic straitjacket we must reply that all concepts are relative. Act of June 28, 1940, 2 (a) (3), 54 Stat. U.S. 373, 376 U.S. 624

[341 Communist unions took over the factories, and in the cities a partisan distribution of food was managed by the Communist organization. For great cases are called great, not by reason of their real importance in shaping the law of the future, but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment.

Similar reasons have been reiterated by this Court. ] Other books taught were Stalin, Problems of Leninism, Strategy and Tactics of World Communism (H. R. Doc.

Footnote 1 v. Douds, 339 U.S. at 397. The power of Congress to separate the two and to affix to each a different penalty is well established.

249 U.S. at 209. 301