Evening star., 1951-06-05
No Semontic Stroitiockets

No Semontic Strditiockets
The texts of the five opinions reveal that a
great deal Of judicial soul-searching went into
the Supreme Courts decision that II Communist
leaders have been properly convicted of conspir-
ing to teach and advocate the violent overthrow
Of this Government.
Chief Justice Vinson Joined by Justices Reed,
Burton and Minton wrote the majority opinion.
The essence of their problem was as old as the
law: When rights clash how shall the conflict
be resolved?
The Chief Justice came quickly to the heart
Of the matter. He said: 1--WE reject any principle
Of governmental helplessness In the face Of prep
aration for revolution. which principle, carried
{ to its logical conclusion, must lead to anarchy.
s No one could conceive that it is not within the
power Of Congress to prohibit acts intended TO
overthrow the Government by force and violence.
> The question with which we are concerned here
Is not whether Congress has such power, but
whether the means which it has employed con-
fiict with the First and Fifth Amendments to the
Constitution" The defendants. pleading that
their right of free speech had been abridged.
relied heavily on the courts doctrine in the
Schenck case, in which the late Justice Holmes
said, with reference to restraints on freedom OF
speech, that the question In every case is
whether the words used are used In such circunl-
stances and are OF such a nature as to create
clear and present danger that they will bring
about the substantive evils that Congress has a
right to prevent"
This is the so-caIled clear-and- present.
danger doctrine which has had powerful infiu-
ence on the courts thinking. But Chief Justice
vinson said that Justice Holmes never envisioned
that shorthand phrase" should be crystallized
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regard to the circumstances Of each case. ITO
those who would paralyze our Government" he
said, SIN the face of impending threat by en-
casing 1t in a semantic straitjacket we must
reply that all concepts are relative" j."
The Chief Justice went on to hold that
there was a clear and present danger in this
case, and that the defendants were properly
convicted under the Smith Act sponsored by
Representative Howard Smith Of Virginia The
defendants he said, intended to overthrow the
Government of the United States as speedily
as the circumstances would permit. Their con-
spiracy to organize the Communist Party and
to teach and advocate the overthrow Of the
Government of the United States by force and
violence created clear and present danger
of an attempt to overthrow the Government by
force and violence. They were properly and
constitutionally convicted for violation Of the
Smith Act"
That there was persuasive quality to the
dissents by Justices Black and Douglas cannot
be denied. Justice Douglas did not think the
danger was either clear or present. I'm days OF
trouble and confusion when breadlines were long,
when the unemployed walked the streets, when
people were starving, the advocates Of shortcut
by revolution might have chance to gain ad-
herents. But today there are no such conditions.
&c apt fYA Aoca "a
Soviet communism the doctrine Of Soviet rev.
olution is exposed in all Of its ugliness and the
American people want none of it. i. :. The polit-
ical censor has no place in our public debates.
Unless and until extreme and necessitous circum-
stances are shown our aim should be to keep
speech unfettered and to allow the processes OF
law to be invoked only when the provocateurs
among us move from speech to action" Justice
Black, following the same general line, concluded
on this note: Public opinion being what 1t now
Is, few will protest the conviction of these Com
munist petitioners. There is hope, however, that
in calmer times, when present presSures passions
and fears subSde, this or some later court Will
restore the first amendment liberties to the high
preferred place where they belong in free
society"
Justice Jackson would have taken q stronger
stand than did the Chief Justice After review
ing some of the triumphs Of the Communist
conspiracy in other countries he said that he
would not have applied in this case the clear
and-present-dang doctrine, which he described
as "judge-made verbal trap" If applied as it
is proposed here, he said, ut means that the
Communist plotting is protected during its period
of incubation; its preliminary stages OF organ
ization and preparation are immune from the
law: the Government can move only after I'M
rninent action is manifest, when 1t would, OF
course, be too late"
Justice Jackson also added word Of sound
advice "I have little faith" he said, ain the
longrange effectiveness Of this conviction to stop
the rise Of the Communist movement Com
nunism will not go to Jail with these Commu-
nists. No decision by this court can forestaI
revolution whenever the existing government
fails to command the respect and loyalty Of the
people and sufficient distress and discomfort is
allowed to grow up among the masses Many
failures by fallen governments attest that no
government can long prevent revolution by out
lawry Corruption, ineptitude imitation, oppres
sve taxation, militarization injustice and loss of
leadership capable Of intellectual initiative in
domestic or foreign affairs allies on which the
Communists count to bring opportunity knocking
to their door. Sometimes think they may be
mistaken But the Communists are not building
tust for today-the rest Of us might profit by
their example"
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