Wrong for the Wrong Reasons

When in search of provocative material, I often flip through the pages of The Great Quotations — a left-slanted tome compiled by the late and long-lived George Seldes. Today, I came across this:

Overthrow of the Government by force and violence is certainly a substantial enough interest for the Government to limit speech. Indeed, this is the ultimate value of any society, for if a society cannot protect its very structure from armed internal attack, it must follow that no subordinate value can be protected.

That’s from Chief Justice Fred M. Vinson’s majority opinion in Dennis v. United States (1951). Here’s an outline of the case and its aftermath, as given at Wikipedia:

In 1948, eleven Communist Party leaders were convicted of advocating the violent overthrow of the U.S. government and for the violation of several points of the Smith Act. The party members who had been petitioning for socialist reforms claimed that the act violated their First Amendment rights to freedom of speech and that they served no clear and present danger to the nation….

[In the original trial] Prosecutor John McGohey did not assert that the defendants had a specific plan to violently overthrow the U.S. government, but rather alleged that the CPUSA’s philosophy generally advocated the violent overthrow of governments.[7] To prove this, the prosecution proffered articles, pamphlets and books (such as The Communist Manifesto) written by authors such as Karl Marx and Joseph Stalin.[8] The prosecution argued that the texts advocated violent revolution, and that by adopting the texts as their political foundation, the defendants were also personally guilty of advocating violent overthrow of the government.[9]

Petitioners were found guilty by the trial court and the decision was affirmed by the Second Circuit Court of Appeals. The Supreme Court granted writ of certiorari, but limited it to whether section two or three of the Smith Act violated the First Amendment and whether the same two sections violated the First and Fifth Amendments because of indefiniteness….

Handed down as a 6-2 decision by the Court on June 4, 1951, the judgment and a plurality opinion was delivered by Chief Justice of the United States Fred M. Vinson, who was joined by Justices Stanley Forman Reed, Sherman Minton, and Harold H. Burton. Separate concurring opinions were delivered by Justices Felix Frankfurter and Robert H. Jackson. Justices Hugo Black and William O. Douglas wrote separate dissenting opinions. Justice Tom C. Clark did not participate in this case.

The Court rule affirmed the conviction of the petitioner, a leader of the Communist Party in the United States. Dennis had been convicted of conspiring and organizing for the overthrow and destruction of the United States government by force and violence under provisions of the Smith Act. In affirming the conviction, a plurality of the Court adopted Judge Learned Hand’s formulation of the clear and probable danger test, an adaptation of the clear and present danger test:

In each case [courts] must ask whether the gravity of the “evil,” discounted by its improbability, justifies such invasion of free speech as necessary to avoid the danger….

[I]n 1969, Brandenburg v. Ohio held that “mere advocacy” of violence was per se protected speech. Brandenburg was a de facto overruling of Dennis, defining the bar for constitutionally unprotected speech to be incitement to “imminent lawless action”.[20]

This is from Wikipedia‘s account of Brandenburg v. Ohio:

The Court held that government cannot punish inflammatory speech unless that speech is directed to inciting, and is likely to incite, imminent lawless action.[1]

Brandenburg completely did away with Denniss central holding and held that “mere advocacy” of any doctrine, including one that assumed the necessity of violence or law violation, was per se protected speech.

And this is from the final paragraph of the Court’s ruling in Brandenburg:

[W]e 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. 4 Such a statute falls within the condemnation of the First and Fourteenth Amendments.

So, in effect (though not in so many words), the Brandenburg Court found the Dennis Court to be wrong. Not wrong about the wrongness of overthrowing the government, just wrong about when the wrongness may be prosecuted. The Dennis Court was prematurely protective.

To put it another way, it’s all right to advocate wrong-doing, as long as the advocacy doesn’t lead directly to the wrong-doing.

Well, the Dennis Court may have been wrong, but not for the reason cited by the Brandenburg Court, which is also wrong. Why? Because it invites endless hair-splitting about the point at which advocacy translates to action. If the action being advocated is wrong, isn’t it also wrong — constitutional niceties aside — to advocate the action? I’m certainly not advocating thought-crime prosecution, but I am not satisfied with the Brandenburg Court’s conclusion.

If the purpose of the United States, as originally constituted, was to foster liberty, why should the government of the United States tolerate the promulgation of anti-libertarian views? Freedom of speech, after all, is just one manifestation of liberty. And that manifestation could vanish, with the rest, under an anti-libertarian regime.

Here’s the counter-argument: If government is allowed to suppress speech that promulgates the overthrow of America’s constitutional values in favor of anti-libertarian ones (e.g., communism), couldn’t the government then suppress speech that might have a tenuous connection with the idea of overthrowing America’s constitutional values? Government could, for example, suppress speech that proposes the establishment of a socialistic scheme that isn’t contemplated in the Constitution, such as Social Security. And if government could suppress speech of that kind, it could also suppress speech aimed at amending the Constitution to legalize socialistic schemes.

That wouldn’t be so bad, but the power to suppress speech is easily adapted to anti-libertarian uses. Untoward speech and thoughts about “protected groups” could be outlawed. Oops! Such speech and thoughts have been outlawed. “Hate thoughts” may be inferred as the unspoken motivation for a crime, given the personal characteristics of the (supposed) victim of the crime.

By now, you may have concluded that the problem isn’t the Constitution, it’s government. Or, more concretely, the persons and groups who are able to command the power of government. No piece of paper can protect liberty from the anti-libertarian machinations of government officials and the voting blocs to which they are beholden.

Which brings me back to the quotation at the beginning of this post, Chief Justice Vinson’s muddled rationale for the Supreme Court’s holding in Dennis v. United States:

Overthrow of the Government by force and violence is certainly a substantial enough interest for the Government to limit speech. Indeed, this is the ultimate value of any society, for if a society cannot protect its very structure from armed internal attack, it must follow that no subordinate value can be protected.

Government is not society. Nor does the United States comprise a single society, but rather multitudes of societies and interest groups: some desirous of liberty, others desirous of domination. The latter have prevailed, and have come to dominate those that desire liberty. Accordingly, “subordinate” values (e.g., free speech, property rights, and freedom of association) have not been protected by government.

Government, as it now stands, is unworthy of protection by the friends of liberty. In fact, it is (or should be) in need of protection from the friends of liberty. And may they prevail.

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Related posts:
An Agenda for the Supreme Court
Liberals and the Rule of Law
The Slippery Slope of Constitutional Revisionism
A Hypothetical Question
The Real Constitution and Civil Disobedience
A Declaration of Independence
First Principles
Zones of Liberty
The Constitution: Original Meaning, Corruption, and Restoration
A Declaration of Civil Disobedience
Rethinking the Constitution: “Freedom of Speech, and of the Press”
Society and the State
Our Perfect, Perfect Constitution
Reclaiming Liberty throughout the Land
A New Constitution for a New Republic
Restoring Constitutional Government: The Way Ahead
“We the People” and Big Government
How Libertarians Ought to Think about the Constitution