William O. Douglas: Dissent in Dennis v. United States

Explanation and Analysis of the Document

Although Douglas would come to be known as a committed civil libertarian, his early years on the Court showed a man trying to come to grips with the legal problems he encountered and find a way to reconcile the needs of the state with the rights of the individual. During World War II, he frequently joined majority opinions that favored the government at the expense of individuals and civil liberties. Two examples are Minersville School District v. Gobitis (1940), which upheld mandatory flag-saluting laws against a religious liberty challenge, and Korematsu v. United States (1944), which upheld the constitutionality of laws and ordinances banning Japanese Americans from areas deemed militarily sensitive.

At the same time, however, Douglas was revising his position and coming more and more to hold a strongly pro–civil liberties viewpoint. In West Virginia v. Barnette, a second flag-salute case, he voted with the majority to overturn Gobitis. Douglas continued to refine his position with regard to civil liberties throughout the end of the 1940s and into the 1950s, becoming a particularly vociferous advocate of the right to free speech, which he defended at great length in several of his books, including The Right of the People (1958) and Points of Rebellion (1970).

One of Douglas's most famous dissents came in 1951 in Dennis v. United States. Eugene Dennis and ten others had been convicted for teaching Communist doctrine, specifically works by Karl Marx and Friedrich Engels, Vladimir Lenin, and Joseph Stalin. The lower courts held that the defendants were guilty of violating the Smith Act, which made it illegal to willfully conspire to teach or to advocate the violent overthrow or other forced destruction of the federal government. The majority affirmed, finding that the Smith Act did not violate the First or Fifth Amendments and that the petitioners' actions constituted a “clear and present danger” to the government of the United States. The Court thus upheld the convictions.

Douglas disagreed and wrote a scathing dissent from the majority's opinion. For him, there was a fundamental difference between speech and action, particularly where sedition was concerned. Actions, according to Douglas, can always be punished, but the First Amendment protects speech in and of itself until speech becomes action. The right to free speech is not absolute, he notes, but the question of when freedom of speech could be infringed upon should be treated as a cost-benefit analysis. If the cost of permitting the speech outweighs the benefit to the people, then that speech could be regulated. If not, it must stand unmolested. Douglas argues that questions of free speech must be considered in light of the credibility of the threat posed. If advocacy of the violent overthrow of the government presents a credible threat to the government, then that speech may be suppressed; if it does not pose a credible threat, then the speech must be permitted.

Douglas quotes Thomas Jefferson in support of the free marketplace of ideas and declares that Communism has been discussed within this marketplace and found wanting. Dennis and his cohorts stood no chance of recruiting others to their cause and thus presented no legitimate danger to the state. He is careful not to disregard the threat that the USSR and Communism posed on the international scene. The Soviet Union does pose an international threat, he maintains, but Communism as an ideology within the United States does not, because it lacks credibility as an idea. Douglas argues in his dissent that the right of Dennis and like-minded individuals to teach Communist doctrine should be upheld as a basic freedom; he does, however, also mention his belief that teaching Communism will reveal to others the “ugliness” of the doctrine and further undermine its ideological credibility.

That decided, Douglas turns to what he saw as the heart of the question—the nature of the teacher rather than the content taught. He questions the majority's claim that it was not the teaching of Communist doctrine that was illegal but the fact that the defendants had conspired against the government. If these books are to remain on shelves, if they are not to be thrown to the flames, as they would be in the Soviet Union, Douglas wonders, why can they not be freely used in teaching? Even though these books advocate the violent overthrow of the U.S. government, Douglas says, they would not be prohibited from classroom use by law. Douglas faults the majority for implying that the distinction hinges on whether the teacher believes in the creed; presumably, if the material were taught by someone demonstrably opposed to the creed, it would be permitted. This, he says, is an unconstitutional abridgment of free speech, since it holds that speech is only free conditionally, depending on the viewpoints of the speaker. As Douglas warns in his dissent, this interpretation is “dangerous to the liberties of every citizen.”