The Cold War Against Communism

In 1951, the U.S. Supreme Court delivered its opinion in the case of Dennis v. United States, appealing the conviction of eleven members of the Central Committee of the Communist Party of the United States for violating the Smith Act. Passed by Congress in 1940, the Smith Act made it a criminal offense for anyone "to knowingly or willfully advocate, abet, advise, or teach the duty, necessity, desirability, or propriety of overthrowing the Government of the United States or of any State by force or violence, or for anyone to organize any association that teaches, advises, or encourages such an overthrow, or for anyone to become a member of or to affiliate with any such association." Before examining the Supreme Court's ruling in the Dennis case, however, it is important to consider the political context in which this case arose.

Although the United States and the Soviet Union had been allies in the fight against Nazi Germany during World War II, it was not long after the war ended that mutual and deep-seated antagonism between the two nations emerged. Convinced that the Soviet Union was intent on expanding the sphere of communist rule, in 1947 the Truman administration launched a policy known as containment, with its announcement that it would come to the economic and military aid of any nation threatened by communist takeover. Eventually, this led President Truman to dispatch thousands of American soldiers to the southern half of the Korean peninsula in 1950 to repel an invasion of Soviet- and Chinese-backed communist forces from the north.

At the same time that the United States was seeking to contain communism overseas, there was a considerable fear that communist sympathizers were seeking to subvert American democracy at home. In 1947, President Truman authorized a Federal Employees Loyalty Program, designed to purge the government of anyone suspected of "disloyalty." That year, the House Un-American Activities Committee (HUAC) began an investigation of supposed communist influences in the Hollywood film industry. Claiming that their political affiliations were protected by the First Amendment, 10 witnesses refused to answer the committee's questions. Soon thereafter, all of the members of the "Hollywood Ten" were convicted of contempt of Congress and sent to prison; dozens of others who opposed their convictions were "blacklisted" and prevented from working in the film industry for years. In 1950, Senator Joseph McCarthy of Wisconsin gave a famous speech in which he accused the State Department of being "thoroughly infested with communists," initiating a four-year crusade to root out alleged communist infiltration into the U.S. government. Finally, also in 1950, Congress passed the Subversive Activities Control Act (also known as the "McCarran Act") which, among other things, authorized the president to declare an "Internal Security Emergency" and detain without the benefit of habeas corpus anyone considered likely to engage in espionage or sabotage.

It was in this atmosphere that the case of Dennis v. United States reached the Supreme Court in 1951.

Indicted in 1948, the 11 officials of the Communist Party were convicted of conspiring to "advocate and teach the principles of Marxism-Leninism." In the view of the government, disseminating such beliefs violated the Smith Act prohibition against endorsing the overthrow of the U.S. government by force or violence. A majority of the Supreme Court upheld the convictions, loosening the "clear and present danger" standard first articulated in Schenck, and replacing it with a "clear and probable danger" test. In his dissent, Justice William Douglas wrote that "to believe that [the defendants] and their following are placed in such critical positions as to endanger the Nation is to believe the incredible.''

The "Red Scare" of the Cold War era lost momentum in 1954, when Joseph McCarthy was finally censured by his Senate colleagues after taking on the U.S. Army in his crusade to uncover communist subversion. Three years later, in 1957, the Supreme Court reversed its decision in Dennis, declaring that the mere teaching of communist ideology was not the same as attempting to incite an immediate overthrow of the government and was therefore protected speech under the First Amendment. Although this decision effectively halted Smith Act prosecutions, it didn't invalidate the Smith Act itself.