The Fifth Column

Dennis v. United States considers the paradox of anarchic free speech further. Like most other instances of regulated radicalism, this case resulted from lingering wartime tension and domestic insecurity. Americans were terrified of a latent ideological encroachment on their society from within. This phenomenon is known as the “fifth column,” a perception of insurgency within one’s country often attributed to a dangerous foreign presence. If that sounds familiar, it’s because Trump’s rhetoric for the past two years has consistently portrayed Muslims as America’s fifth column, a concept prominent in other Western countries as well.

In 1948, radical ideologies like communism and anarchism served as the fifth column, at least according to legislators and the American public. This led to the Smith Act, which outlawed the act of calling for the overthrow of the United States government and required non-citizen residents of a certain age to register with the government. These two standards illustrate the nature of the fear surrounding communism in the post-War period. This fear was based on pervasive foreign threat to the established free market society that Americans vindicated. Although the United States was not yet at war when the Smith Act was enacted, considerable anxiety existed around possible enemy infiltration through ideological solidarity, especially considering France’s fall to Nazi Germany in 1940. Several Communist Party leaders within the United States were arrested and convicted under these circumstances in 1948.

The plurality opinion by Chief Justice Vinson found that the Smith Act did not violate free speech as enumerated in the First Amendment. The fact that the leaders advocated for the overthrow of the government was enough to require a conviction, not considering the likeliness of such an overthrow ever happening. This advocacy fulfilled the “clear and present danger” doctrine in that it garnered ideological support for the upheaval of the United States government. The Court discerned that the likelihood of failure was not a deterrent for the doctrine’s applicability. Vinson cited both Gitlow v. New York and Whitney v. California, cases in which the Court upheld limitations to freedom of speech, to bolster his holding. The Court made the distinction between advocacy and neutral information to make it clear that academic instruction was not necessarily hindered by this ruling.

The significance of this ruling is that it takes the already restrictive “clear and present danger” guideline and adds an extra dimension of subjective judgement. This case showed that even advocacy without direct action is enough to prompt limitations on the right to free speech. Such lax rules illustrate how fear operates as a pervasive force even among supposedly objective judicial perspectives. This recognition is imperative for future dissections of free speech and and for an understanding of how we got to today’s state of free speech.


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