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JOUR 302 Study Guide - Midterm Guide: Ageism, Strict Scrutiny, Syndicalism

Course Code
JOUR 302
Stephen Stern
Study Guide

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The Smith Act (1940)
- Crime to advocate overthrow of government by force and to proselytize groups for such
- The law did not require proof that the group might actually carry out any of those goals
before its members could be prosecuted; mere advocacy was sufficient
- Not just war time
- Used after WWII part of Start of McCarthyism
- During the Cold War used to prosecute numerous members of the American
Communist Party
- In addition, there were provisions making it a crime to proselytize for groups
having such goals
- 121 people prosecuted under act–
- Dennis v. U.S. (341 U.S. 494)
- The Smith Act’s constitutionality was first tested before the U.S.
Supreme Court in a 1951 case involving 12 alleged Communists
- Eugene Dennis and the others were tried on charges of willfully
and knowingly conspiring to overthrow the U.S. government by
- After a controversial nine-month trial, they were convicted and the
Supreme Court eventually upheld the convictions
- Court adopted a test formulated by Learned Hand
- modified version of the clear and present danger
- Leonard Hand (famous circ. Judge) changed test to gravity of the evil….which is
discounted by its improbability justifies such invasion of free speech and is necessary to
avoid danger
- SCOTUS – Warren replaced Chief Justice Vinson and reversed 14 convictions because
jury instructions not include finding that the words moved people to produce forcible
action …”Teaching the desirability of violently overthrowing government is abstract to
actually advocating violent action
Brandenberg v. Ohio
- California Criminal Syndicalism law used to prosecute Brandenburg who spoke at a Klan
Rally in which he talked about “sending n***ers back to Africa and Jews to Israel..and
revengeance..plans for a massive march on Washington
- Several men wore robes and hoods and carried guns, and they burned a cross
- First amendment upheld
- Can’t punish abstract speech
- Test changed to “Imminent Harm.”
- “Even if speech is a call for action it doesn’t mean it’s likely to produce imminent lawless
- “The speech must be directed to inciting or producing imminent lawless action
and it’s likely to incite or produce that action”
- Imminent harm if the march happens
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