When the Time Is Ripe

Probably no judicial phrase in recent years has caused more confusion than the late Justice Holmes's famed rubric that free speech is dangerous only when it constitutes "a clear and present danger" to U.S. security.

For years, squatting behind the rock of the First Amendment (free speech), and insisting blithely that they were a danger to no one, U.S. Communists had screamed their denunciations and thumbed their noses at U.S. democracy. Last week Judge Learned Hand ruled flatly that Communism is a "clear and present danger."

Chief judge of the U.S. court of appeals in New York and generally regarded by the legal profession as one of the country's soundest jurists, 78-year-old Judge Hand wrote a 23,000-word decision which upheld Judge Harold Medina, the constitutionality of the Smith Act,* and the conviction, under the act, of the Communist Party's eleven top officials (TIME, Oct. 24). If the Supreme Court justices follow where Medina and Hand have led --and their recent decision upholding the Taft-Hartley non-Communist oath indicates they will--the eleven will be fined $10,000 each and carted off to serve up to five years in the pen.

"Such Fustian." Judge Hand went right to the point. The courts, he wrote, must find their way through Holmes's rubric "as they can." He suggested a guidepost: "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 . . ."

He argued: "One may reasonably think it wiser in the long run to let an unhappy, bitter outcast vent his venom before any crowds he can muster . . . One may trust that his patent impotence will be a foil to anything he may propose. Indeed, it is a measure of the confidence of a society in its own stability that it suffers such fustian to go unchecked. [But] here we are faced with something very different"--i.e., the American Communists, who secretly conspire, conceal their membership, take orders from abroad.

Most Probable Danger. The Communists' creed, Judge Hand found, includes "the violent capture of all existing governments." The only question is "how long a government, having discovered such a conspiracy, must wait. When does the conspiracy become 'a present danger'?"

The very thing that U.S. Reds banked on was that the First Amendment would give them freedom to make "all preparatory steps and in the end the choice of initiative, dependent upon that moment when they believe us, who must await the blow, to be worst prepared to receive it" --an analysis which paralleled the analysis made by Judge Medina.

Judge Hand went further. The fact was, he thought, that the Communist conspiracy was a perfectly clear danger, even back in the summer of 1948 when the eleven were indicted. Said Judge Hand, with a horrified backward look at such contemporary incidents as the Berlin blockade: "We do not understand how one could ask for a more probable danger, unless we must wait till the actual eve of hostilities . . ."

"Choose We Must." "True," he warned, "we must not forget our own faith; we must be sensitive to the dangers that lurk in any choice. But choose we must, and we shall be silly dupes if we forget that again and again in the past thirty years, just such preparations in other countries have aided to supplant existing governments, when the time was ripe."

Backed by his colleagues, Judges Swan and Chase, he denied all the other objections raised by the eleven to the trial--the way the jury was selected, the kind of testimony and evidence admitted. The eleven had had a proper trial; if anything, the long-suffering Judge Medina, heckled and insulted by the Reds' lawyers, had leaned over backward to be just. "If at times he did not conduct himself with the imperturbability of a Rhadamanthus [he] showed considerably greater self-control and forbearance than it is given to most judges to possess . . .

"We know of no country," Judge Hand concluded, ". . . except Great Britain, where they [the Reds] would have had so fair a hearing."

* Which makes it a felony to teach and advocate the violent overthrow of the U.S.

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