Dennis v. United States

341 U.S. 494 (1951)

Dissenting Opinion by Justice Douglas

Justice Douglas’ dissent in Dennis does not soar to rhetorical heights like the early First Amendment dissents. However, his analysis is sharp.

Douglas starts by making clear the true limits as he sees them: “If this were a case where those who claimed protection under the First Amendment were teaching the techniques of sabotage, the assassination of the President, the filching of documents from public files, the planting of bombs, the art of street warfare, and the like, I would have no doubts. The freedom to speak is not absolute; the teaching of methods of terror and other seditious conduct should be beyond the pale along with obscenity and immorality.”

He then argues that no such speech exists in this case: “So far as the present record is concerned, what petitioners did was to organize people to teach and themselves teach the Marxist-Leninist doctrine contained chiefly in four books… The opinion of the Court does not outlaw these texts nor condemn them to the fire, as the Communists do literature offensive to their creed. But if the books themselves are not outlawed, if they can lawfully remain on the library shelves, by what reasoning does their use in the classroom become a crime?”

Clearly referencing Brandeis’ earlier counsel toward courage, Douglas closes: “Neither prejudice nor hate no senseless fear should be the basis of this solemn act. Free speech [should] not be sacrificed on anything less than plain and objective proof of danger that the evil advocated in [imminent.” Note that since Brandeis is not quoted, the map uses a dotted arrow to describe the relationship.

One more note: I could not also plot Justice Black’s dissent since it also garnered a single vote and would thus occupy the same position on the map as Douglas’ dissent. Though I deemed Douglas’ dissent more substantive, I’d like to close with Black for his historical sense was unerring: “ Public opinion being what it now is, few will protest the conviction of these Communist Petitioners. There is hope, however, that in calmer times, when present pressures, passions and fears subside, this or some later Court will restore the First Amendment liberties to the high preferred place where they belong in a free society.”

USEFUL LINKS

CourtListener (full opinion text)

Oyez (summary + lineups)

Supreme Court Database (more detail)

Wikipedia (summary + links)