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.
