Noto v. United States

RESPONDENT: United States
LOCATION: Trailways Bus Terminal

DECIDED BY: Warren Court (1958-1962)
LOWER COURT: United States Court of Appeals for the Second Circuit

CITATION: 367 US 290 (1961)
ARGUED: Oct 10, 1960 / Oct 11, 1960
DECIDED: Jun 05, 1961

Facts of the case


Media for Noto v. United States

Audio Transcription for Oral Argument - October 10, 1960 in Noto v. United States

Audio Transcription for Oral Argument - October 11, 1960 in Noto v. United States

Earl Warren:

Francis Noto, Petitioner, versus the United States.

Mr. Davis.

John F . Davis:

Mr. Chief Justice, if the Court please.

I will address myself first to a paragraph in the Court's order for rehearing which I did not reach yesterday.

That is the question dealing with the application of the clear and present danger doctrine.

The question as it was stated in the Court's order reads, whether the clear and present danger doctrine as interpreted by counsel has application to the membership clause.

However, with respect to the accused, are with respect to the society, group or assembly of persons described in the statute, if that will hold whether such doctrine was or can now be properly applied in this case.

In the Dennis case, Judge Hand held that the clear and present danger doctrine as interpreted by him to meet that situation did apply to a conspiracy to organize a group to advocate violent overthrow and did apply to a conspiracy to advocate violent overthrow.

And he specifically found that on the record in that case, a clear and present danger then existed.

Now, in the principal opinion of the four Justices on the majority side of this Court and there was no opinion for the Court in the Dennis case, but in the principal opinion in which four Justices erred.

The Judge Hand's formulation of the rule and of the application to that set of circumstances was specifically affirmed.

The concurring opinion of Mr. Justice Frankfurter however placed more weight on the congressional determination that speech should be regulated in this case and less emphasis upon the clear and present danger doctrine as applied by a Court.

It is our position that this doctrine should apply to the membership clause in precisely the same to the -- precisely the same extent that is applied to the organizing clause or the conspiracy clause.

If constitutional limitations on interferences with speech require some such overwriting limitations and the Court has generally held that it do, then it seems as though they should apply to all aspects of the Smith Act and reasonable of the application should be made here.

I think that some danger in -- in making this application in the -- in the original language of the rule, I think that Judge Hand was carrying through the spirit of the rule but certainly varying it from its original applications.

But for the present purposes I think that you do get a sufficient protection if you accept that rule.

That is, that in each case that must be asked whether the gravity of the evil discounted by its improbability justifies such invasion of free speech as is necessary to avoid danger.

Felix Frankfurter:

Do you mind telling me -- do you mind directing me where I can find out what content you give to that phrase, clear and present danger?

Where should I go to find out what it contains --

John F . Davis:

What it --

Felix Frankfurter:

-- and means?

John F . Davis:

How -- how --

Felix Frankfurter:

How I'm to apply it?

What it means?

John F . Davis:

The only way that I know that when you find out what it means is to find out how it was applied to the original Schenck case, to the Gitlow case, the Whitney case and how -- and the American Communications against Douds.

Felix Frankfurter:

Do you think if the original Schenck and Douds case, a real danger to the country?

John F . Davis:

I think there's been a very real change in the application in -- in this rule and I think its -- I think particularly in the -- in the Gitlow case, that today we could hardly say -- would hardly say that this was a very real danger as far as the --

Felix Frankfurter:


John F . Davis:

Because --

Felix Frankfurter:

Real danger in this country?