Editing Robert H. Jackson (section)

===''Dennis v. United States''===
{{Main|Dennis v. United States}}

===="Clear and present danger" test====
{{Main|Clear and present danger}}
In 1919, the Supreme Court decided ''[[Schenck v. United States]]''.<ref>Schenck v. United States, 249 U.S. 47 (1919).</ref> In Schenck, the petitioners, members of the [[Socialist Party of America|Socialist Party]], were convicted of violating the [[Espionage Act of 1917]] for printing and distributing [[Flyer (pamphlet)|circulars]] asserting that American citizens had a right to oppose the draft during [[World War I]] because, among other things, it violated the United States Constitution.<ref>Schenck at 49–51.</ref> The ''Schenck'' decision promulgated the "clear and present danger test," which provided the standard for sustaining a conviction when speech is relied upon as evidence that an offense has been committed.<ref>''Dennis v. United States'', 341 U.S. 494, 505–507. see also, ''[[Brandenburg v. Ohio]]'', 395 U.S. 444, 447 (1969).</ref> Justice [[Oliver Wendell Holmes Jr.|Holmes]], writing for a unanimous court, affirmed the decision of the lower court positing:

<blockquote>We admit that, in many places and in ordinary times, the defendants, in saying all that was said in the circular, would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done ... The question in every case is whether the words used are used in such circumstances, and 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. It is a question of proximity and degree.<ref>249 U.S. 47, 52.</ref></blockquote>

====Background====
In 1951, the Supreme Court decided ''[[Dennis v. United States]]''.<ref name="ReferenceA"/> In Dennis, the petitioners were zealous [[Communism|Communists]] who organized for the purpose of teaching the "Marxist-Leninist Doctrine."<ref>''Dennis v. United States'' p. 582 (Douglas, J. Dissenting)</ref> The principal texts used to teach the doctrine were: ''History of the Communist Party of the [[Soviet Union]]''; ''Foundations of Leninism'' by [[Joseph Stalin|Stalin]]; ''[[The Communist Manifesto]]'' by [[Karl Marx|Marx]] and [[Friedrich Engels|Engels]]; and ''[[State and Revolution]]'' by [[Vladimir Lenin|Lenin]].<ref name="ReferenceA"/> The Petitioners were convicted for violating clause 2 and clause 3 of the Smith Act which, among other things, made it unlawful to conspire to organize a group which advocates the overthrow of the United States government by force or violence.<ref>''Dennis v. United States'' at 495; see also, 54 Stat. 671.</ref> The issue before the Supreme Court was "[w]hether 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 ..."<ref>''Dennis v. United States'' at 495–496.</ref>

====Jackson's concurrence====
In ''Dennis'', Jackson concluded that the "clear and present danger test" should not be applied.<ref>''Dennis v. United States'' p. 570.</ref> To this end, Jackson analyzed: the effect Communism had outside the United States; the nature of Communists; and the problems with applying the test. Jackson's analysis can be summarized as follows:

On the effect that Communists historically had on foreign countries, Jackson analyzed their effect on [[Czechoslovakia]].<ref>''Dennis v. United States'' at 565–566.</ref> In Czechoslovakia, a Communist organization disguised as a competing political faction secretly established its roots in key control positions "of police and information services."<ref name="ReferenceA"/> During a period of national crisis, a clandestine Communist organization appeared and overthrew the Czechoslovakian government. Establishing control of mass communication and industry, the Communist organization's rule was one of "oppression and terror." Ironically, as Jackson points out, the Communist organization suppressed the very freedoms which made its conspiracy possible.<ref name="ReferenceA"/>

On the nature of Communists, Jackson characterized them as an extraordinarily dedicated and highly selective group, disciplined and indoctrinated by Communist policy.<ref>''Dennis v. United States'' at 564.</ref> The goal of Party members is to secretly infiltrate key positions of government, industry, and unions and to leverage their power once in such positions.<ref name="ReferenceA"/> Jackson goes on to say that, although "Communist[s] have no scruples against sabotage, terrorism, assassination, or mob disorder," they "advocate force only when prudent," which "may never be necessary, because infiltration and deception may be enough."<ref>''Dennis v. United States'' at 564–565.</ref>

On the problems with applying the clear and present danger test in ''Dennis'', Jackson deemed significant that the test was authored "before the era of World War II revealed the subtlety and efficacy of modernized revolutionary technique used by totalitarian parties."<ref name="Id. at 568">''Dennis v. United States'' at 568.</ref> Jackson believed that the application of the test should be limited to cases bearing strong enough likeness to those for which it was originally crafted – i.e., "...criminality of hot-headed speech on a street corner, or parading by some zealots behind a red flag, or refusal of a handful of Jehovah Witness school children to salute our flag."<ref name="ReferenceA"/> Expressing strong concern that the expansive construction the Court had recently given the test in ''Bridges v. California,''<ref>''Dennis v. United States'' at 568 n.12 (1951) (distinguishing ''[[Whitney v. California]]'' 274 U.S. 357, 376 (1927) from ''Bridges v. California'', 314 U.S. 252, 263 (1941)).</ref> Jackson asserted that the test provided Communists with "unprecedented immunities," while the "Government is captive in a judge-made verbal trap."<ref name="Id. at 568"/> Jackson goes on to describe the application of the test to Communists, when determining the constitutionality of the Smith Act facially, or as applied as one of "...apprais[ing] imponderables, including international and national phenomena, which baffle the best informed foreign offices and our most experienced politicians."<ref>''Dennis v. United States'' at 570.</ref>

Jackson concludes his First Amendment analysis in ''Dennis'' by asserting that:

<blockquote>The authors of the "clear and present danger test" never applied it to a case like this, nor would I. If applied as it is proposed here, it means that the Communist plotting is protected during its period of incubation; its preliminary stages of organization and preparation are immune from the law; the Government can move only after imminent action is manifest, when it would, of course, be too late.<ref name="ReferenceA"/></blockquote>

====Conclusion====
In the end, the Court applied its own version of the "clear and present danger test" in ''Dennis'',<ref>''Dennis v. United States'' at 510–511.</ref> essentially disregarding the analytical elements of probability and temporality which had previously appeared to be requirements of the doctrine.<ref>Erwin Chemrensky, Constitutional Law: Principles and Policies, 961, 962 (Aspen 2ed. 2002)</ref> Jackson, however, as one commentator put it, expressed in ''Dennis'' (at least with regards to Communists) that, "when used as part of a conspiracy to act illegally, speech loses its First Amendment protection."<ref>Martin H. Redish, Unlawful Advocacy and Free Speech Theory: Rethinking the Lessons of The McCarthy Era, 73 UCINLR 9, 51 (2004).</ref>