Evening star., 1950-12-05
High Court 10 Study
Appeal Of II Top Reds
In Conspiracy Case
By Robert K. WoIsh

The "ciear and present danger"
doctrine written 81 years ago by
Justice Holmes lowered over the
Supreme Court today, as argu-
ments ended for IL American
Communist Party leaders con-
victed Of conspiracy to teach vio-
lent overthrow of the Govern
ment.
The court took the appeal
under advisement early this
afternoon. with little likelihood
Of handing down a decision for
several months.
Rebuttal was waived by attor-
neys for the accused and by
Solicitor General Philip B. PERL
man who defended constitution
ality of the 1910 Smith Act, under
which the IL were found guilty in
Federal Court in New York City
year ago.
Attorneys for the defendants
attack the law as thought
suppression" and say there was no
clear and present danger that
would justify denial of free
speech. press and assembly.
Danger Test Cited.
Almost four hours of argument
yesterday brought frequent men,
ton of the clear and present
danger" test stated by Justice
Holmes as means of determining
how far free speech and similar
Constitutional guarantees should
apply.
Mr.. Perlman and Irving 81
Shapiro. Government attorney
at the original trial, declared that
the case Of the Communist leaders
presented no Constitutional prob
lem and that the clear and pres
ent danger" issue did not arise
This was not an exercise of
free speech in their advocacy of
violent overthrow of the Govern
ment," Mr.. Perlman said, ut was
an abuse of free speech. These
people operate from foreign
country. Justice Holmes didn't
mean that his doctrine should
stand in the conditions we find in
this case"
When Mr.. Perlman maintained
that, as long ago as 1925, the Su-
preme Court upheld Constitution
ality of the same basic point in
volved in the Communist leaders
conviction under the Smith Act,
Justice Douglas remarked that
constitutional questions are al
ways open"
"Oh, yes" Mr.. Perlman smiled
you can always re-examine. But
we contend that when Congress
undertakes to protect against
teaching violent overthrow of the
Government. there is no consti-
tutional problem"
Earlier yesterday. in calm tones,
contrasting with the turmoil that
often marked the trial before
Federal Judge Harold r. Medina
in New York last year, Attorneys
Harry Sacher. George w. Crockett
and Abraham j. Isserman con-
tended that "the way to meet
speech Is with speech and not
with force"
Now Under Sentence.
The three defense lawyers were
among five sentenced to Jail by
Judge Medina after he held them
in contempt for their conduct dur
ing the trial. They have appealed
to the Supreme Court. but the
tribunal has not yet said whether
1t will review these cases.
Mr.. Sacher led off the argument
yesterday by describing the Smith
Act as an "unabashed attempt"
to suppress political ideals and
doctrines.
Mr.. Crockett centered his argu-
ment on whether the activities
of the Communist leaders actually
threatened violent overthrow of
the Government. The Govern
ment. he said, should have been
required to prove beyond a rea-
sonable doubt that a clear and
present danger threatened the
Nation.
Mr.. IsSerman described the
Smith Act as $50 broad and vague
that it is unconstitutional"
Congress, he said, did not set
up clear standards for determin-
ing clear and present danger.
In the crowded courtroom were
six Of the IL Communist leaders.
They were John B. Williamson.
Robert G. Thompson, Benjamin
j. Davis, jr.. John Gates, Carl
Winter and Gus Hall. The other
five are Eugene Dennis, party
secretary now serving a year in
jail for contempt of Congress;
Jacob Stachel, Henry Winston,
Irving Potash and Gilbert Green.