Dennis & clear & present danger
 Earlier Holmes/Brandeis version of “Clear & Present Danger”:
There must be a clear & present danger of immediate & serious harm
 Dennis Test:
Does the gravity of the evil discounted by its improbability, justify
punishment of the speech? (balance harm and likelihood/imminence)
 Issues to think about:
 Gov’t officials have the incentive to magnify the risk under the Dennis
version
 Is the c&pd test generally most appropriate for hotheaded political
advocacy rather than secretive, subversive organizations
 Why were Ds charged with “conspiracy to advocate overthrow of the
government” rather than attempted overthrow or conspiracy to
overthrow?
 Would the Dennis version of the test be more appropriate for those latter
charges?
Yates v. US – cutting back on Dennis
 Involved the same issues as Dennis but lesser party leaders. SCT
overturned Ds convictions in Yates. Justice Harlan did this by:
 Interpreting Smith Act to distinguish between punishing present
advocacy of action (urging someone to do something) and present
advocacy of doctrine (advocating belief in something).
 Arguing that Smith Act didn’t allow punishment of the latter and that
Yates Ds advocated belief of violent overthrow
 Harlan contrasted Yates w/ Dennis Ds who urged people to action
 Harlan’s Evidentiary Problem – Yates D’s were charged with
same crimes & tried on same evidence as Dennis D’s. Yates
and Dennis Ds were part of same “conspiracy” and engaged in
the same actions
 By focusing on “content” & “facts” Harlan’s test moves away from
Dennis’s “clear & present danger” approach.
Scales v. United States – freedom of association revisited
 Yates made it so difficult to convict people under advocacy
portions of Smith Act, gov’t pursued people under membership
prong. Scales is the SCT’s last pronouncement on when gov’t can
punish people for membership in an organization w/ both legal
and illegal ends.
 A person can be punished for membership in an organization with
both legal and illegal ends if:

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they are an active member
with knowledge of the organization's illegal activity,
and intent to further the organization's illegal ends.
 SCT interpreted Smith Act to comply with these requirements;
otherwise it would have punished association and not “personal
guilt.”
Brandenburg v. Ohio (1969)
Government can forbid advocacy of the use of force or of law violation
only where such advocacy is:
(1) directed to inciting/producing imminent lawless action, &
(2) likely to incite or produce such action.
5 basic requirements
1) Intent to cause harm
2) Express advocacy of harm
3) Harm caused must be illegal
4) Harm caused must be imminent
5) Advocacy must be likely to cause harm
Why isn’t D’s speech punishable under this test? Why the
different test her of all times?
Possible Criticisms of Brandenburg

Does Brandenburg still fall short of protecting speech?
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Douglas concurrence – appropriate line re punishment is between
ideas & overt acts
Does Brandenburg protect too much speech?