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3 Dartmouth C. Undergraduate J.L. 60 (2005)
Dennis v. United States: The Supreme Court's Contribution to McCarthyism

handle is hein.journals/dcujl3 and id is 180 raw text is: DENNIS v. UNITED STATES: THE SUPREME COURT'S
Elizabeth Parfit

Elizabeth Parfait is a senior Comparative Literature Major at Dartmouth College writing a thesis on decadent French
and English literature. She has volunteered as a teacher in Botswana and as an intern at Dartmouth College's organic
farm. Her interest in law extends to basic civil liberties including free expression and due process.

I.    Introduction
Following World War II, the collective actions taken by
the federal government to protect American democracy
against the perceived threat of Communism did more damage
to democratic ideals than they did to preserve them. The
Supreme Court case of Dennis vs. United States (1951)
demonstrates this irony. In Dennis, the Supreme Court inter-
preted the Alien Registration Act of 1940, commonly known
as the Smith Act, in such a way as to exclude the Communist
party from Constitutional protection, making it virtually ille-
gal to be a member. Though eventually reversed in Yates vs.
United States (1957), the Dennis decision, for a brief period
of time, deprived an entire group of American citizens of cer-
tain constitutional rights and legitimated Senator Joe
McCarthy's (R-Wisconsin) anti-Communist campaign of the
early 1950's.
II.   Dennis vs. United States
On July 28, 1948, Eugene Dennis, general secretary of
the Communist Party of the United States of America
(CPUSA), and ten of his colleagues were indicted by a fed-
eral grand jury for violation of the Smith Act. Section 2(a) of
the Act stated that:
It shall be unlawful for any person (1) to knowingly
or willfully advocate, abet, advise, or teach the duty,
necessity, desirability, or propriety of overthrowing
or destroying any government in the United States
by force or violence... (2) with intent to cause the
overthrow of destruction of any government in the
United States, to print, publish, edit, issue, circulate,
sell, distribute, or publicly display any written or
printed matter, advocating, advising, or teaching the
duty, necessity, desirability, or propriety of over-
throwing or destroying any government in the
United States by force or violence; (3) to organize or
help to organize any society, group, or assembly of
persons who teach, advocate, or encourage the over-
throw or destruction of any government in the
United States by force or violence; or to be or
become a member of, or affiliate with, any such
society, group, or assembly of persons, knowing the
purposes thereof.
Section 3 of the same Act made it unlawful for any person

to attempt to commit, or to conspire to commit, any of the
acts prohibited by the provisions of... this title.' The eleven
members of the party were charged with having violated the
Smith Act by knowingly and willfully advocating and
teaching the overthrow of the United States government by
force and violence. According to the Justice Department's
attorney, John McGohey, the party members on trial had
plans to provoke strikes and to commit acts of sabotage by
placing Communists in key industrial positions. But these
plans had never been acted upon. Therefore, the only plausi-
ble interpretation of the charges was that they had been lev-
eled for the mere act of organizing the CPUSA in the first
place. Since the prosecution had essentially put the founding
of the CPUSA on trial, the defense, represented by Eugene
Dennis himself, responded in kind. Rather than make a con-
stitutional argument based on the defendants' First
Amendment rights, he undertook a defense of the
Communist party in general.
The strength or weakness of Dennis' arguments, howev-
er, was ultimately irrelevant to the outcome of the trial
because the jury was cornered into a decision before it even
went into deliberation. While the job of the jurors should
have been to determine whether the acts of the defendants
were protected by the First Amendment, the presiding judge,
Harold Medina, deprived them of this task. The legal test for
determining whether or not speech is protected by the First
Amendment was established in the 1917 case, Shenck vs.
United States. In that case, Justice Oliver Wendell Holmes
established the clear and present danger test. Holmes used
the example of yelling fire in a crowded theater to demon-
strate how words used in certain circumstances can bring
about an immediate danger to the lives or well-being of oth-
ers. The question in every case he wrote, is whether the
words used in such circumstances are of such a nature as to
create a clear and present danger that they will bring about
the substantive evils that Congress has a right to prevent.' In
order to justify a restriction of free speech, the government
must prove that the speech in question would pose such dan-
ger if expressed. In the Dennis case, Judge Medina unequiv-
ocally informed the jury that a clear and present danger did
already exist: I find as a matter of law that there is a suffi-
cient danger of a substantive evil that the Congress has a
right to prevent.... He essentially undermined the power of
the jury, declaring: this is a matter of law with which you
have no concern.' The jury was thus placed an extremely
difficult position; to find the defendants not guilty would


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