Basically Law

Read the decision here.

Issue.  Did a federal law that made it a crime to advocate the violent overthrow of the government violate the First Amendment right to Freedom of Speech?

Background.  Individuals were prosecuted under the Smith Act, a federal law that criminalized anarchy and/or the advocacy of the violent overthrow of the government.  There was little question that the purpose of the Communist Party was to infiltrate and to overthrow the United States government through violent means.

The question is whether this prosecution and/or the Smith Act goes too far in infriging rights to Freedom of Speech.

The Supreme Court did not find the prosecution to violate the First Amendment.

Court's Analysis.  The Court found that Congress has the power to prohibit acts that are introduced to overthrow the government by force or violence.  The question is not whether the government has the power to do so, but whether the means that the Government does so conflicts with the Constitution.

The Smith Act did not criminalize scholarly discussion of Marxism-Leninism, but advocacy of violence.  While the Court claimed it was returning to the "Clear and Present Danger" test, it also noted that the Government does not have to wait for the putsch before it can act.  Further, the fact that the Government could easily defeat any rebellion does not mean it has to allow for the rebellion to occur.

So, at what point can the Government act, consistent with the Constitution, to stop a possible rebellion.  The Court looked to Chief Justice Learned Hand from the the Second Circuit Court of Appeals for that standard:

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.

The Supreme Court agreed that the requisite danger existed in this case.  The fact that the group had not tried to overthrow the government did not mean that they were not ready to make the attempt.  The Court concludes:

It is the existence of the conspiracy which creates the danger.  [If] the ingredients of the reaction are present, we cannot bind the Government to wait until the catalyst is added.

[Petitioners] intended to overthrow the Government of the United State as speedily as the circumstances would permit.  Their conspiracy to organize the Communist Party, and to teach and advocate the overthrow of the [Government] by force and violence created a "clear and present danger."

Afterword.  This is no longer good law.  But, is the desire to overthrow the Government enough to create a "clear and present danger"?  Is the Court advocating the "clear and present danger" test but ignoring it in this case.