US

v. Dorr
The defendants charged with the offense of writing, publishing, and circulating a scurrilous libel
against the Government of the United States and the Insular Government of the Philippine Islands.
The alleged libel was published as an editorial in the issue of the "Manila Freedom" of April 6, 1902,
under the caption of "A few hard facts."

ARTICLE:
"It is a strong thing to say, but nevertheless true, that the Civil Commission, through its ex-insurgent
office holders, and by its continual disregard for the records of natives obtained during the military
rule of the Islands, has, in its distribution of offices, constituted a protectorate over a set of men who
should be in jail or deported. . . . [Reference is then made to the appointment of one Tecson as justice
of the peace.] This is the kind of foolish work that the Commission is doing all over the Islands,
reinstating insurgents and rogues and turning down the men who have during the struggle, at the
risk of their lives, aided the Americans."

ISSUE: whether their publication constitutes an offense under section 8 of Act No. 292, above cited.

DECISION: NO
The article in question has no appreciable tendency to "disturb or obstruct any lawful officer in
executing his office," or to "instigate" any person or class of persons "to cabal or meet together for
unlawful purposes," or to "suggest or incite rebellious conspiracies or riots," or to "stir up the people
against the lawful authorities or to disturb the peace of the community, the safety and order of the
Government." All these various tendencies, which are described in section 8 of Act No. 292
we are unable to discover anything in it which can be regarded as having a tendency to produce
anything like what may be called disaffection, or, in other words, a state of feeling incompatible with
a disposition to remain loyal to the Government and obedient to the laws.

ISSUE #2: what is meant in section 8 of Act No. 292 by the expression "the Insular Government of the
Philippine Islands."
In the act of Congress of July 14, 1798, commonly known as the "Sedition Act," it is made an offense
to "write, print, utter, or published," or to "knowingly and willingly assist or aid in writing, printing,
uttering, or publishing any false, scandalous, and malicious writing against the Government with
intent to defame the said Government, or to excite against them or either or any of them the hatred of
the good people of the United States," etc.

DECISION:
The term "government" would appear to be used here in the abstract sense of the existing political
system, as distinguished from the concrete organisms of the Government — the Houses of Congress
and the Executive — which are also specially mentioned.

The article in question contains no attack upon the governmental system. The form of government by
a Civil Commission and a Civil Governor is not assailed. It is the character of the men who are
intrusted with the administration of the government that the writer is seeking to bring into disrepute
by impugning the purity of their motives, their public integrity, and their private morals, and the
wisdom of their policy.


US v. Abad
• The defendant was convicted of the violation of section 8 of Act No. 292, the law defining and
punishing treason and sedition. He is the author of the Tagalog drama "Tanikalang Guinto"
(The Chain of Gold).

STORY:
The heroine, Liwanag, is promised in marriage to the hero, K. Ulayaw. Maimbot, who has given
consent to this promise of marriage. During the progress of the play he withdraws his consent,

1
forbids K. Ulayaw to come to his house, and by Liwanag to abandon her lover. He takes into his
employ Nagtapon, a brother of K. Ulayaw, whom he directs to act as a spy upon the movements of
Ulayaw. Another of the characters in the play is Dalita, the mother of K. Ulayaw and Nagtapon.
Nagtapon disowns her, and she dies in the first act. The gifts of Maimbot to Liwanag not producing
any result, her resorts to harsher measures, binds her to a tree, and places Nagtapon as a watch over
her. K. Ulayaw, searching for her, finds her in this condition, and is killed by Nagtapon. The play ends
with the translation of Liwanag to the heavens.

• It is claimed by the Government, however, that it was intended to represent the relations
between the Government of the United States and the Philippines
• The word "independence" or "independent" occurs five times in the course of the play, but
always in connection with the marriage of Liwanag and K

DECISION: ACQUITTED
That the public did not understand the play as meaning what the Government claims it means is
apparent from the testimony of some of the Government’s own witnesses.

The defendant, the author, he had read in a newspapers that all plays should be submitted for
examination to the division of information. He thereupon took his play to the office of John F. Green.
It was returned to him the next day, with authority to present it. However it may be, it is apparent
that the play was not considered seditious by the authorities of Manila.


US v. Apurado

The appellants in this case were convicted of the crime of sedition as defined in section 5 of Act No.
292 of the Philippine Commission
•
"All persons who rise publicly and tumultuously in order to attain by force or outside of legal
methods any of the following objects are guilty of sedition
•
"2. To prevent the Insular Government, or any provincial or municipal government or any
public official, from freely exercising its or his duties or the due execution of any judicial or
administrative order.

Some 500 residents crowded into the municipal council chamber and demanded the dismissal from
office of the municipal treasurer, the municipal secretary, and the chief of police, and the substitution
of new officials.
The council acceded to their wishes and drew up a formal document setting out the reasons for its
action, which was signed by the councilors present and by several of the leaders of the crowd;
Petitioner: desiring the dismissal of the above-mentioned officials because they believed that they
should not be permitted to hold office in the municipality on account of their outspoken allegiance to
one of the factions into which the town was at that time divided.

DECISION: ACQUITTED
Not only were the individual members of the crowd wholly unarmed, the assembly merely desired to
petition for the removal of several municipal officials; and in proof of the fact that they had no
intention of committing a breach of the peace, the members of the crowd raised their jackets to prove
that they were carrying no weapons.

If the prosecution be permitted to seize upon every instance of such disorderly conduct as an excuse
to characterize the assembly as a seditious and tumultuous rising against the authorities, then the
right to assemble would become a delusion and the attempt to exercise it in the most peaceable
manner would expose all those who took part therein to the severest and most unmerited

2
punishment, if the purposes which they sought to attain did not happen to be pleasing to the
prosecuting authorities.








US v. Cabola
Charged with the crime of violating section 4 of Act No. 292 of the Philippine Commission, enacted
for the purpose of punishing those who should enter into a conspiracy to destroy the Government of
the United States in the Philippine Islands.

Celedonio Ramos and Inocencio Torio appealed to this court

Pedro Cabola and others organized a Katipunan Society, which had for its object the destruction by
force of the Government of the United States in the Philippine Islands and the establishment of
another government in the form of a military organization.

DECISION: GUILTY

Pedro Cabola made revolutionary and seditious speeches; and that many of the defendants signed a
document or documents seditious in character, their clearly indicated purpose being the destruction
of the Government of the United States in the Philippine Islands. Several of the defendants confessed
their guilt to the public officials.

Celedonio Ramos, he was present at a meeting at which Pedro Cabola made an inflammatory and
seditious speech and resolved to construct in an isolated place a shelter for soldiers who should be
furnished with guns and ammunition. Ramos was elected to the office of military president.

Inocencio Torio was a member of the Katipunan Society and knew of its seditious and revolutionary
character; he was present at the said meeting when Pedro Cabola pronounced the seditious
discourse; that he was a captain in the organization; and that he signed a document admittedly of a
revolutionary and seditious character.


US v. Perfecto
Secretary of the Philippine Senate, Fernando M. Guerrero, discovered that certain documents had
disappeared from his office. Philippine Senate informed that body of the loss of the documents and of
the steps taken to discover the guilty party. The day following the convening, newspaper La Nacion,
edited by Mr. Gregorio Perfecto said:

“there is not the slightest indication that the author or authors of the crime will ever be discovered.
To find them, it would not, be necessary to go out of the Sente itself, and the persons in charge of the
investigation of the case would not have to display great skill in order to succeed in their
undertaking, unless they should encounter the insuperable obstacle of official concealment.

It was alleged that the same constituted a violation of article 256 of the Penal Code. The defendant
Gregorio Perfecto was found guilty in the municipal court and again in the Court of First Instance of
Manila.

3
Appellant's main proposition was that article 256 of the Spanish Penal Code is not now in force
because abrogated by the change from Spanish to American sovereignty over the Philippines and
because inconsistent with democratic principles of government.

ISSUE: W/N Art. 256 is consistent with the Constitution and laws of the United States and the
characteristics and institutions of the American Government.

DECISION: NO, ACQUITTED
Article 256 of the Penal Code is contrary to the principles of the American character and
system of government. This article was crowded out by implication as soon as the United States
established its authority in the Philippine Islands. Penalties out of proportion to the gravity of the
offense, grounded in a distorted monarchical conception, as opposed to the American conception of
the protection of the interests of the public, have been obliterated.
Punishment for contempt of non-judicial officers has no place in a government based upon
American principles.
The American system of government never does it place around the individual who happens
to occupy an official position by mandate of the people any official halo, which calls for drastic
punishment for contemptuous remarks.
The crime of lese majeste disappeared in the Philippines with the ratification of the Treaty of
Paris. Ministers of the Crown have no place under the American flag.
.


Espuelas v. People
Oscar Espuelas y Mendoza was convicted for a violation of Article 142 of the Revised Penal Code
which punishes those who shall write, publish or circulate scurrilous libels against the Government
of the Philippines or any of the duly constituted authorities thereof or which suggest or incite
rebellious conspiracies or riots or which tend to stir up the people againts the lawful authorities or to
disturb the peace of the community.

Oscar Espuelas y Mendoza had his picture taken, making it to appear as if he were hanging lifeless at
the end of a piece of rope suspended form the limb of the tree, when he was merely standing on a
barrel. Espuelas sent copies of same to several newspapers throughout the Philippines and abroad,
for their publication with a suicide note or letter:
“My dear wife, if someone asks to you why I committed suicide, tell them I did it because I was not
pleased with the administration of Roxas. Tell the whole world about this.
And if they ask why I did not like the administration of Roxas, point out to them the situation in
Central Luzon, the Leyte.
Dear wife, write to President Truman and Churchill. Tell them that here in the Philippines our
government is infested with many Hitlers and Mussolinis.lawphil.net
Teach our children to burn pictures of Roxas if and when they come across one.
I committed suicide because I am ashamed of our government under Roxas”

DECISION: GUILTY
The latter is a scurrilous libel against the Government.

Writings which tend to overthrow or undermine the security of the government or to weaken the
confidence of the people in the government are against the public peace, and are criminal not only
because they tend to incite to a breach of the peace but because they are conducive to the destruction
of the very government itself

Not to be restrained is the privilege of any citizen to criticize his government officials and to submit
his criticism to the "free trade of ideas" and to plead for its acceptance in "the competition of the
market." However, let such criticism be specific and therefore constructive, reasoned or tempered,
and not a contemptuous condemnation of the entire government set-up.

4

Analyzed for meaning and weighed in its consequences the article cannot fail to impress thinking
persons that it seeks to sow the seeds of sedition and strife. The infuriating language is not a sincere
effort to persuade

If it be argued that the article does not discredit the entire governmental structure but only President
Roxas and his men, the reply is that article 142 punishes not only all libels against the Government
but also "libels against any of the duly constituted authorities thereof."

The essence of seditious libel may be said to its immediate tendency to stir up general discontent to
the pitch of illegal courses; that is to say to induce people to resort to illegal methods other than
those provided by the Constitution, in order to repress the evils which press upon their minds.


People v. Nabong
This appeal has been brought to reverse a judgment of the Court of First Instance Ignacio Nabong,
guilty of the offense of sedition under section 8 of Act No. 292, as amended by Act No. 1692

The appellant had been retained to defend one Juan Feleo against a charge of sedition that had been
preferred against him. Feleo was in those days a recognized leader of the communists in Nueva Ecija,
and was related by marriage to the appellant.

Nabong, had refused to accompany Major Gallardo and his companions on their trip to Santa Rosa,
arrived in time to participate in the meeting of communists. At this meeting the red flag was
displayed, contrary to the promise that Feleo had made to Major Gallardo; and upon learning of this
fact, Major Gallardo, and several Constabulary officers, repaired to the place where the meeting was,
and upon arrival they found Feleo making a speech seditious nature. Major Gallardo caused him to be
arrested and removed from the place. At the same time the red flag which was being displayed on the
platform was removed.

Seeing Nabong present, Major Gallardo told him that the disturbance would have been avoided if he
(Nabong) had followed the suggestion made to him at Cabanatuan by Major Gallardo not to display
the flag.

Nabong who delivered a speech and criticized the members of the Constabulary, using words
substantially to the following effect:
“They committed a real abuse in seizing the flag. The members of the Constabulary are bad because
they shoot even innocent women, as it happened in Tayug. — In view of this, we ought to be united to
suppress that abuse. Overthrow the present government and establish our own government, the
government of the poor. Use your whip so that there may be marks on their sides.”

DECISION: GUILTY
The language used by the appellant clearly imported an overthrow of the Government by violence.
The word "overthrow" could not have been intended as referring to an ordinary change by the
exercise of the elective franchise.

It was the purpose of the speaker to incite his hearers to the overthrow of organized government by
unlawful means. The words also suggested and incited rebellious conspiracies, thereby tending to
stir up the people against the lawful authorities and the order of the Government, in violation of
section 8 of Act No. 292 of the Philippine Commission.

It is suggested in the appellant's brief that incompatible with that portion of section 3 of the Jones
Law which declares that no law shall be passed abridging the freedom of speech or of the press. It is a
fundamental principle, long established, that the freedom of speech and of the press which is secured
by the Constitution does not confer an absolute right to speak or publish, without responsibility,

5
whatever one may choose, or unrestricted or unbridled license that gives immunity for every
possible use of language and prevents the punishment of those who abuse this freedom.

The act which is the subject of this prosecution was committed prior to the coming into effect of the
Revised Penal Code; but the penalty provided for this offense in article 142 in relation with article
139 of said Code is greater than that imposed by the trial court, and by this court, under section 8 of
Act No. 292. It results that nothing beneficial to the appellant is revealed in the new Code.





People v. Evangelista
Crisanto Evangelista and Abelardo Ramos, were charged in the Court of First Instance of Manila with
a violation of section 8 of Act No. 292

A parade was to be held, but as the permit for the parade had been revoked, a Constabulary officer
appeared with his soldiers at the place to prevent the holding of the parade.

The appellant, Crisanto Evangelista held a conversation with the Constabulary officer about the
permit and its revocation, after which Evangelista was allowed by the Constabulary officer to say a
few words to the people for the purpose of informing them that the parade could not be held.

But instead of telling the people to retire, he raised his fist, which the people approved by shouting
"mabuhay", and then said:

"Comrades or brethren, the municipal president, Mr. Aquino, has allowed us to hold the parade, but
for reason unknown to me, the permit has been revoked. This shows that the big ones are
persecuting and oppressing us, who are small, which they have no right to do." Then shouts were
heard from the audience saying, "Let us fight them".

Soldiers made use of a water pump and dispersed them. There were found on the body of Crisanto
Evangelista the permit issued by the municipal president and its revocation.

They further claimed that the people were peaceful, but the trial court found the facts as above
stated, and the appellant's brief does not point out any data or reason why the finding of the trial
court should not be upheld.

DECISION: GUILTY
It must be noted that the disorder took place several months after the inauguration of the Communist
Party and after the communists had already filled the minds of their followers with their revolting
ideas in several meetings.

That the said utterances were really inciting is shown by the fact that the mass did actually advance
against them, and the latter had to use force in order to enforce the law. In the instant case, there was
an inducement to fight, an actual though unexpected fight and resistance against the authorities. It
was simply the practical expression and repetition of the previous instigations to overthrow the
government, made by the communist leaders before.






Schenck v. US

6
This is an indictment in three counts to violate the Espionage Act of June 15, 1917, by causing and
attempting to cause insubordination in the military and naval forces and to obstruct the recruiting
and enlistment service of the United States, when the United States was at war with the German
Empire.

Defendants willfully conspired to have printed and circulated a document to cause such
insubordination and obstruction.

It is argued that the evidence was not sufficient to prove that the defendant Schenck was concerned
in sending the documents. According to the testimony, Schenck said he was general secretary of the
Socialist party, and had charge of the Socialist headquarters from which the documents were sent. He
identified a book found there as the minutes of the Executive Committee of the party. The book
showed a resolution that 15,000 leaflets should be printed on the other side of one of them in use, to
be mailed to men who had passed exemption boards, and for distribution. Schenck personally
attended to the printing.

It intimated that enlistment was exercise of oppressive power in its worst form. It said "Do not
submit to intimidation," The other and later printed side of the sheet was headed "Assert Your
Rights." It stated reasons for alleging that anyone violated the Constitution when he refused to
recognize "your right to assert your opposition to the draft,"

"If you do not assert and support your rights, you are helping to deny or disparage rights which it is
the solemn duty of all citizens and residents of the United States to retain."

ISSUE: 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.

DECISION: GUILTY
We do not see what effect it could be expected to have upon persons subject to the draft except to
influence them to obstruct the carrying of it out.

When a nation is at war, many things that might be said in time of peace are such a hindrance to its
effort that their utterance will not be endured so long as men fight, and that no Court could regard
them as protected by any constitutional right. It seems to be admitted that, if an actual obstruction of
the recruiting service were proved, liability for words that produced that effect might be enforced.

The statute of 1917, in § 4, punishes conspiracies to obstruct, as well as actual obstruction. If the act
(speaking, or circulating a paper), its tendency, and the intent with which it is done are the same, we
perceive no ground for saying that success alone warrants making the act a crime.
Abrams v. US
The first of these leaflets says that the President's cowardly silence about the intervention in Russia
reveals the hypocrisy of the plutocratic gang in Washington. It intimates that "German militarism
combined with allied capitalism to crush the Russian evolution " -- goes on that the tyrants of the
world fight each other until they see a common enemy -- working class enlightenment, militarism
and capitalism combined, to crush the Russian revolution. It says that there is only one enemy of the
workers of the world: capitalism;

The other leaflet says that America together with the Allies will march for Russia to help the Czecko-
Slovaks in their struggle against the Bolsheviki, and that this time the hypocrites shall not fool the
Russian emigrants and friends of Russia in America. It tells the Russian emigrants that they now must
spit in the face of the false military propaganda by which their sympathy and help to the prosecution
of the war have been called forth, and says that, with the money they have lent or are going to lend,
"they will make bullets not only for the Germans, but also for the Workers Soviets of Russia,"

7
It then appeals to the same Russian emigrants at some length not to consent to the "inquisitionary
expedition to Russia," and says that the destruction of the Russian revolution is "the politics of the
march to Russia."

OPINION:
But, as against dangers peculiar to war, the principle of the right to free speech is always the same. It
is only the present danger of immediate evil or an intent to bring it about that warrants Congress in
setting a limit to the expression of opinion where private rights are not concerned.

I do not see how anyone can find the intent required by the statute in any of the defendants' words.
The second leaflet is the only one that affords even a foundation for the charge.The only object of the
paper is to help Russia and stop American intervention there against the popular government -- not
to impede the United States in the war that it was carrying on.

resistance to the United States means some forcible act of opposition to some proceeding of the
United States in pursuance of the war. intent must be the specific intent that I have described. No
such intent was proved or existed in fact.

We should be eternally vigilant against attempts to check the expression of opinions unless they so
imminently threaten immediate interference with the lawful and pressing purposes of the law that
an immediate check is required to save the country. I wholly disagree with the argument of the
Government that the First Amendment left the common law as to seditious libel in force. History
seems to me against the notion. I had conceived that the United States, through many years, had
shown its repentance for the Sedition Act of 1798, by repaying fines that it imposed

8
Gitlow v. New York
Benjamin Gitlow was indicted in the Supreme Court of New York, with three others, for the statutory
crime of criminal anarchy.

LAW
The contention here is that the statute, by its terms and as applied in this case, is repugnant to the
due process clause of the Fourteenth Amendment. Its material provisions are:
• "§ 160. Criminal anarchy defined. Criminal anarchy is the doctrine that organized
government should be overthrown by force or violence, or by assassination of the executive
head or of any of the executive officials of government, or by any unlawful means. The
advocacy of such doctrine either by word of mouth or writing is a felony."
• "§ 161. Advocacy of criminal anarchy. Any person who:"
• "1. By word of mouth or writing advocates, advises or teaches the duty, necessity or
propriety of overthrowing or overturning organized government by force or violence, or by
assassination of the executive head or of any of the executive officials of government, or by
any unlawful means; or,"
• "2. Prints, publishes, edits, issues or knowingly circulates, sells, distributes or publicly
displays any book, paper, document, or written or printed matter in any
• Page 268 U. S. 655
• form, containing or advocating, advising or teaching the doctrine that organized government
should be overthrown by force, violence or any unlawful means"
• "Is guilty of a felony and punishable"
• by imprisonment or fine, or both.

The first charged that the defendant had advocated overthrowing government by force, violence and
unlawful means by writings entitled "The Left Wing Manifesto"; the second, that he had printed,
published and distributed a certain paper called "The Revolutionary Age," containing the writings

The defendant is a member of the Left Wing Section of the Socialist Party, a dissenting branch or
faction of that party formed in opposition to its dominant policy of "moderate Socialism."

Extracts from the Manifesto condemned the dominant "moderate Socialism" for its recognition of the
necessity of the democratic parliamentary state and advocated the necessity of accomplishing the
"Communist Revolution" by a militant and "revolutionary Socialism", based on "the class struggle"

DEFENDANT: "liberty" protected by the Fourteenth Amendment includes the liberty of speech and
of the press, and 2nd, that while liberty of expression "is not absolute," it may be restrained "only in
circumstances where its exercise bears a causal relation with some substantive evil, consummated,
attempted or likely," and as the statute "takes no account of circumstances," it unduly restrains this
liberty and is therefore unconstitutional.

ISSUE: whether the statute, as construed and applied in this case by the state courts, deprived the
defendant of his liberty of expression in violation of the due process clause of the Fourteenth
Amendment.

DECISION:
The Manifesto, plainly, is neither the statement of abstract doctrine nor, as suggested by counsel,
mere prediction. It advocates mass action which shall foment industrial disturbances and, through
political mass strikes and revolutionary mass action, overthrow and destroy organized
parliamentary government. It concludes with a call to action. It is the language of direct incitement.

Freedom of speech and of the press which is secured by the Constitution does not confer an absolute
right to speak or publish, without responsibility.

9
"Manifestly, the legislature has authority to forbid the advocacy of a doctrine designed and intended
to overthrow the government without waiting until there is a present and imminent danger of the
success of the plan advocated. If the State were compelled to wait until the apprehended danger
became certain, then its right to protect itself would come into being simultaneously with the
overthrow of the government, when there would be neither prosecuting officers nor courts for the
enforcement of the law."

We cannot hold that the present statute is an arbitrary or unreasonable exercise of the police power
of the State unwarrantably infringing the freedom of speech or press, and we must and do sustain its
constitutionality.


Whitney v. California
Miss Whitney was convicted of the felony of assisting in organizing, in the year 1919, the Communist
Labor Party of California, of being a member of it, and of assembling with it. These acts are held to
constitute a crime because the party was formed to teach criminal syndicalism. The claim is that the
statute, as applied, denied to Miss Whitney the liberty guaranteed by the Fourteenth Amendment.

LAW:
• Criminal Syndicalism Act are:
• "Section 1. The term 'criminal syndicalism' as used in this act is hereby defined as any
doctrine or precept advocating, teaching or aiding and abetting the commission
• Page 274 U. S. 360
• of crime, sabotage (which word is hereby defined as meaning willful and malicious physical
damage or injury to physical property), or unlawful acts of force and violence or unlawful
methods of terrorism as a means of accomplishing a change in industrial ownership or
control, or effecting any political change."
• "Sec. 2. Any person who: . . . 4. Organizes or assists in organizing, or is or knowingly becomes
a member of, any organization, society, group or assemblage of persons organized or
assembled to advocate, teach or aid and abet criminal syndicalism"
• "Is guilty of a felony and punishable by imprisonment."


The mere act of assisting in forming a society for teaching syndicalism, of becoming a member of it,
or of assembling with, is given the dynamic quality of crime. The accused is to be punished not for
contempt, incitement, or conspiracy, but for a step in preparation, which, if it threatens the public
order at all, does so only remotely. The novelty in the prohibition introduced is that the statute aims,
at association with those who propose to preach it.

But, although the rights of free speech and assembly are fundamental, they are not absolute. Their
exercise is subject to restriction required in order to protect the State from destruction or from
serious injury. That the necessity which is essential to a valid restriction does not exist unless speech
would produce a clear and imminent danger of some substantive evil which the State may seek to
prevent.

The legislature must obviously decide whether a danger exists which calls for a protective measure.
But where a statute is valid only in case certain conditions exist, the enactment of the statute cannot
alone establish the facts which are essential to its validity. Prohibitory legislation has repeatedly
been held invalid, because unnecessary, where the denial of liberty involved was that of engaging in a
particular business.

To justify suppression of free speech, there must be reasonable ground to fear that serious
evil will result, that the danger apprehended is imminent, that the evil to be prevented is a
serious one.

10

Only an emergency can justify repression. Such, in my opinion, is the command of the Constitution. It
is therefore always open to Americans to challenge a law abridging free speech and assembly by
showing that there was no emergency justifying it.

. The fact that speech is likely to result in some violence or in destruction of property is not enough to
justify its suppression. There must be the probability of serious injury to the State.

I am unable to assent to the suggestion in the opinion of the Court that assembling with a
political party, formed to advocate the desirability of a proletarian revolution by mass action
at some date necessarily far in the future, is not a right within the protection of the Fourteenth
Amendment. In the present case, however, there was other testimony which tended to establish the
existence of a conspiracy, on the part of members of the International Workers of the World, to
commit present serious crimes, and likewise to show that such a conspiracy would be furthered by
the activity of the society of which Miss Whitney was a member. Under these circumstances, the
judgment of the state court cannot be disturbed.


Dennis v. US
Petitioners were indicted in July, 1948, for violation of the conspiracy provisions of the Smith Act

LAW
• Sections 2 and 3 of the Smith Act, 54 Stat. 671, 18 U.S.C. (1946 ed.) §§ 10, 11 (see present 18
U.S.C. § 2385), provide as follows:
• "SEC. 2.(a) 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, or by the assassination of any officer of any such government;"
• "(2) with intent to cause the overthrow or 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 overthrowing 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 overthrow 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."
• "(b) For the purposes of this section, the term 'government in the United States' means the
Government of the United States, the government of any State, Territory, or possession of the
United States, the government of the District of Columbia, or the
• Page 341 U. S. 497
• government of any political subdivision of any of them."
• "SEC. 3. It shall be 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 indictment charged the petitioners with willfully and knowingly conspiring (1) to organize as the
Communist Party of the United States of America a society, group and assembly of persons who teach
and advocate the overthrow and destruction of the Government of the United States by force and
violence, and (2) knowingly and willfully to advocate and teach the duty and necessity of
overthrowing and destroying the Government of the United States by force and violence.

ISSUE: whether the means which it has employed conflict with the First and Fifth Amendments to the
Constitution

11

DECISION: NO
Certainly those who recruit and combine for the purpose of advocating overthrow intend to bring
about that overthrow. We hold that the statute requires as an essential element of the crime proof of
the intent of those who are charged with its violation to overthrow the Government by force and
violence. An intent to overthrow the Government by advocacy thereof is equally susceptible of proof.

We reject any principle of governmental helplessness in the face of preparation for revolution, which
principle, carried to its logical conclusion, must lead to anarchy. No one could conceive that it is not
within the power of Congress to prohibit acts intended to overthrow the Government by force and
violence

The very language of the Smith Act negates the interpretation which petitioners would have us
impose on that Act. Congress did not intend to eradicate the free discussion of political theories,
rather Congress was concerned with the very kind of activity in which the evidence showed these
petitioners engaged.

Although no case subsequent to Whitney and Gitlow has expressly overruled the majority opinions in
those cases, there is little doubt that subsequent opinions have inclined toward the Holmes-Brandeis
rationale.

In this case, we are squarely presented with the application of the "clear and present danger" test.
We first note that many of the cases in which this Court has reversed convictions by use of this or
similar tests have been based on the fact that the interest which the State was attempting to protect
was itself too insubstantial to warrant restriction of speech.

Chief Judge Learned Hand, writing for the majority below, interpreted the phrase as follows:
"In each case, [courts] must ask whether the gravity of the 'evil,' discounted by its
improbability, justifies such invasion of free speech as is necessary to avoid the danger."

We adopt this statement of the rule. As articulated by Chief Judge Hand, it is as succinct and inclusive
as any other we might devise at this time. It takes into consideration those factors which we deem
relevant, and relates their significances

It is thus clear that he reserved the question of the existence of the danger for his own determination,
and the question becomes whether the issue is of such a nature that it should have been submitted to
the jury.

We hold that the statute may be applied where there is a "clear and present danger" of the
substantive evil which the legislature had the right to prevent. Bearing, as it does, the marks of a
"question of law," the issue is properly one for the judge to decide.

We hold that §§ 2(a)(1), 2(a)(3) and 3 of the Smith Act do not inherently, or as construed or
applied in the instant case, violate the First Amendment and other provisions of the Bill of Rights,
or the First and Fifth Amendments because of indefiniteness. Petitioners intended to overthrow the
Government of the United States as speedily as the circumstances would permit. Their conspiracy to
organize the Communist Party and to teach and advocate the overthrow of the Government of the
United States by force and violence created a "clear and present danger" of an attempt to overthrow
the Government by force and violence. They were properly and constitutionally convicted for
violation of the Smith Act.

12

Brandenburg v. Ohio
The appellant, a leader of a Ku Klux Klan group, was convicted under the Ohio Criminal Syndicalism
statute for "advocat[ing] . . . the duty, necessity, or propriety of crime, sabotage, violence, or unlawful
methods of terrorism as a means of accomplishing industrial or political reform" and for "voluntarily
assembl[ing] with any society, group, or assemblage of persons formed to teach or advocate the
doctrines of criminal syndicalism."

The appellant challenged the constitutionality of the criminal syndicalism statute under the First (
(congress pass now law abridging free speech) and Fourteenth Amendments (EPC) to the United
States Constitution, but the intermediate appellate court of Ohio affirmed his conviction without
opinion. The Supreme Court of Ohio dismissed his appeal "for the reason that no substantial
constitutional question exists herein." It did not file an opinion or explain its conclusions. Appeal was
taken to this Court, and we noted probable jurisdiction.

The appellant, telephoned an announcer-reporter and invited him to come to a Ku Klux Klan "rally"
reporter and a cameraman attended the meeting and filmed the events broadcast on the local station
and on a national network.

One film showed 12 hooded figures, some of whom carried firearms. They were gathered around a
large wooden cross, which they burned. Scattered phrases could be understood that were derogatory
of Negroes and, in one instance, of Jews.

Another scene on the same film showed the appellant, in Klan regalia, making a speech. The speech,
in full, was as follows:
• " We're not a revengent organization, but if our President, our Congress, our Supreme Court,
continues to suppress the white, Caucasian race, it's possible that there might have to be
some revengeance taken."

The second film showed six hooded figures one of whom, appellant, repeated a speech, the possibility
of "revengeance" was omitted, and one sentence was added: "Personally, I believe the nigger should
be returned to Africa, the Jew returned to Israel."

ISSUE: W/N the Ohio statute goes against the consti

DECISION: YES

The constitutional guarantees of free speech and free press do not permit a State to forbid the use of
force or of law violation except where directed to inciting or producing imminent lawless action and
is likely to incite or produce such action.

• "the mere abstract teaching . . . of the moral propriety or even moral necessity for a resort to
force and violence is not the same as preparing a group for violent action and steeling it to
such action."
•
A statute which fails to draw this distinction impermissibly intrudes upon the freedoms guaranteed
by the First and Fourteenth Amendments. It sweeps within its condemnation speech which our
Constitution has immunized from governmental control.

Measured by this test, Ohio's Criminal Syndicalism Act cannot be sustained. The Act punishes
persons who "advocate or teach the duty, necessity, or propriety" of violence "as a means of
accomplishing industrial or political reform"; or who publish or circulate or display any book or
paper containing such advocacy; or who "justify" the commission of violent acts "with intent to
exemplify, spread or advocate the propriety of the doctrines of criminal syndicalism"; or who

13
"voluntarily assemble" with a group formed "to teach or advocate the doctrines of criminal
syndicalism."

Accordingly, we are here confronted with a statute which, by its own words and as applied, purports
to punish mere advocacy and to forbid, on pain of criminal punishment, assembly with others merely
to advocate the described type of action. Such a statute falls within the condemnation of the First and
Fourteenth Amendments. The contrary teaching of Whitney v. California, supra, cannot be
supported, and that decision is therefore overruled.
Reversed.

14