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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 CONTRIBUTION TO MCCARTHYISM 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 60 DARTMOUTH COLLEGE UNDERGRADUATE JOURNAL OF LAW

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