Dennis v. United States

183 F.2d 201 (2d Cir. 1950)

Thirty-two years after writing his famous Masses opinion, now Chief Judge Learned Hand wrote the Second Circuit’s opinion in Dennis. The case concerned a group of convictions of communists under the Smith Act, a federal law similar to New York’s criminal anarchy statute at issue in Gitlow. The prosecution essentially charged the defendants with organizing the Communist Party, which advocated overthrowing the Government by force and violence. The essential historical backdrop here is the Cold War and anti-communist crusades of Joseph McCarthy and his ilk.

Judge Hand affirmed the convictions and his version of the clear-and-present-danger test was adopted by Supreme Court majority when it subsequently took the case. Hand phrased the test like this: “[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.”

Sullivan & Feldman note that Hand’s Dennis opinion is far less protective of free speech than was his Masses opinion was. The explanation? Citing Gerald Gunther, the authors suggest that Hand took his duty to follow Supreme Court precedent seriously. (His opinion is indeed a masterclass in interpretation.) Apparently, Hand still privately held the view the more protective approach of Masses was the better way. See Sullivan & Feldman, p. 46, n. 2.

USEFUL LINKS

Courtlistener (opinion text)

Wikipedia Entry on Learned Hand (context + links)