The 1949 trial defendants appealed to the Second Circuit Court of Appeals in 1950. Their free speech arguments raised important constitutional issues: they asserted that their political advocacy was protected by the
First Amendment, because the CPUSA did not advocate imminent violence, but instead merely promoted revolution as an abstract concept.
Free speech law One of the major issues raised on appeal was that the defendants' political advocacy was protected by the First Amendment, because the CPUSA did not advocate imminent violence, but instead merely promoted revolution as an abstract concept. Rooted in English
common law, the test permitted speech to be outlawed if it had a tendency to harm public welfare. Anti-war protests during World War I gave rise to several important free speech cases related to sedition and inciting violence. In the 1919 case
Schenck v. United States the Supreme Court held that an anti-war activist did not have a First Amendment right to speak out against the draft. In his majority opinion,
Justice Holmes introduced the clear and present danger test, which would become an important concept in First Amendment law; but the
Schenck decision did not formally adopt the test. Although sometimes mentioned in subsequent rulings, the clear and present danger test was never endorsed by the Supreme Court as a test to be used by lower courts when evaluating the constitutionality of legislation that regulated speech. The Court continued to use the bad tendency test during the early twentieth century in cases such as 1919's
Abrams v. United States which upheld the conviction of anti-war activists who passed out leaflets encouraging workers to impede the war effort. In
Abrams, Holmes and
Justice Brandeis dissented and encouraged the use of the clear and present test, which provided more protection for speech. In 1925's
Gitlow v. New York, the Court extended the First Amendment to the states, and upheld the conviction of Gitlow for publishing the "
Left Wing Manifesto".
Gitlow was decided based on the bad tendency test, but the majority decision acknowledged the validity of the clear and present danger test, yet concluded that its use was limited to Schenck-like situations where the speech was not specifically outlawed by the legislature. Brandeis and Holmes again promoted the clear and present danger test, this time in a concurring opinion in 1927's
Whitney v. California decision. The majority did not adopt or use the clear and present danger test, but the concurring opinion encouraged the Court to support greater protections for speech, and it suggested that "imminent danger"a more restrictive wording than "present danger"should be required before speech can be outlawed. After
Whitney, bad tendency tests continued to be used by the Court in cases such 1931's
Stromberg v. California, which held that a 1919 California statute banning red flags was unconstitutional. The clear and present danger test was invoked by the majority in the 1940
Thornhill v. Alabama decision in which a state anti-picketing law was invalidated. Although the Court referred to the clear and present danger test in a few decisions following
Thornhill, the bad tendency test was not explicitly overruled,
Appeal to the federal Court of Appeals In May 1950, one month before the appeals court heard
oral arguments in the CPUSA case, the Supreme Court ruled on free speech issues in
American Communications Association v. Douds. In that case the Court considered the clear and present danger test, but rejected it as too mechanical and instead introduced a
balancing test. The federal appeals court heard oral arguments in the CPUSA case on June 21–23, 1950. Two days later, on June 25,
South Korea was invaded by forces from communist
North Korea, marking the start of the
Korean War; during the two months that the appeals court judges were forging their opinions, the Korean War dominated the headlines. On August 1, 1950, the appeals court unanimously upheld the convictions in an opinion written by Judge
Learned Hand. Judge Hand considered the clear and present danger test, but his opinion adopted a balancing approach similar to that suggested in
American Communications Association v. Douds. In his opinion, Hand wrote: In each case they [the courts] must ask whether the gravity of the 'evil', discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger.... The American Communist Party, of which the defendants are the controlling spirits, is a highly articulated, well contrived, far spread organization, numbering thousands of adherents, rigidly and ruthlessly disciplined, many of whom are infused with a passionate Utopian faith that is to redeem mankind.... The violent capture of all existing governments is one article of the creed of that faith [communism], which abjures the possibility of success by lawful means. The opinion specifically mentioned the contemporary dangers of communism worldwide, with emphasis on the
Berlin Airlift.
Appeal to the Supreme Court wrote the opinion in
Dennis v. United States. The defendants appealed the Second Circuit's decision to the Supreme Court in
Dennis v. United States. During the Supreme Court appeal, the defendants were assisted by the
National Lawyers Guild and the ACLU. In his opinion, Vinson endorsed the balancing approach used by Judge Hand: Vinson's opinion also addressed the contention that Medina's jury instructions were faulty. The defendants claimed that Medina's statement that "as matter of law that there is sufficient danger of a substantive evil that the Congress has a right to prevent to justify the application of the statute under the First Amendment of the Constitution" was erroneous, but Vinson concluded that the instructions were an appropriate interpretation of the Smith Act. Justices
Hugo Black and
William O. Douglas dissented from the majority opinion. In his dissent, Black wrote "public opinion being what it now is, few will protest the conviction of these Communist petitioners. There is hope, however, that, in calmer times, when present pressures, passions and fears subside, this or some later Court will restore the First Amendment liberties to the high preferred place where they belong in a free society." Following the
Dennis decision, the Court utilized balancing tests for free speech cases, and rarely invoked the clear and present danger test.
Appeal of contempt sentences {{quote box The defense attorneys appealed their contempt sentences, which were handed out by Judge Medina under Rule 42 of the
Federal Rules of Criminal Procedure. The attorneys raised a variety of issues on appeal, including the purported misconduct of the judge, and the claim that they were deprived of due process because there was no hearing to evaluate the merits of the contempt charge. They argued that the contempt charges would prevent future CPUSA defendants from obtaining counsel, because attorneys would be afraid of judicial retaliation. The initial appeal to the federal appeals court was not successful: The court reviewed Medina's actions, and reversed some specifications of contempt, but affirmed the convictions. The attorneys then appealed to the Supreme Court which denied the initial petition, but later reconsidered and accepted the appeal. The Supreme Court limited their review to the question, "was the charge of contempt, as and when certified, one which the accusing judge was authorized under Rule 42(a) to determine and punish himself; or was it one to be adjudged and punished under Rule 42(b) only by a judge other than the accusing one and after notice, hearing, and opportunity to defend?". == Trials of "second-tier" officials ==