Dennis v. United States
341 U.S. 494 (1951)

  • The Smith Act made it illegal to plot or advocate the overthrow of the US government.
  • Dennis, and other leaders of the American Communist Party were arrested and charged with advocating the overthrow of the government.
    • Actually, Dennis wasn’t advocating the overthrow of anything, he was simply teaching Communist philosophy, and organizing the Community Party as a political group.
    • This was happening right at the height of McCarthyism.
  • The Trial Court convicted Dennis et. al. They appealed.
    • Dennis argued that the Smith Act was a violation of the 1st Amendment’s guarantee of freedom of speech.
  • The US Supreme Court upheld the convictions.
    • The US Supreme Court found that freedom of speech is not an absolute right, but must be balanced against government interests.
    • Instead of applying the clear and present danger test (see Schenck v. United States (249 U.S. 47 (1919))), or the reasonableness approach (see Gitlow v. New York (268 U.S. 652 (1925))), the Court decided to use the risk formula approach to determine if the speech should be protected.
      • The risk formula approach asks whether the gravity of the “evil,” discounted by its improbability, justifies such invasion of free speech as necessary to avoid the danger.
        • This is the same basic idea as the Hand Formula from Tort Law.
          • See United States v. Carroll Towing Co. (159 F.2d 169 (2d Cir. 1947)).
    • In this case, based on the risk formula approach, the Court found (in a plurality), that Dennis’ actions amounted to a violation of the Smith Act.