Yates v. United States

U.S. Case Law

354 U.S. 298 (1957), ruled that speech advocating the forcible overthrow of the government is not prosecutable unless it is tied to overt acts. The opinion modified that of Dennis v. United States, 341 U.S. 494 (1951), which was largely a restatement of the famous opinion of Justice Oliver Wendell Holmes, Jr., regarding the “clear and present” danger test in Schenck v. United States. In the 1940s and 1950s, these two earlier decisions were often cited in conjunction with the Smith Act (1940) and the Internal Security (McCarran) Act (1950) in cases involving so-called un-American activities on the part of presumed Communist organizations. In Yates, however, the clear-and-present-danger doctrine underwent revision such that no seditious or subversive speech could be punished unless it constituted an incitement to immediate unlawful action and the incitement was likely to produce, in the circumstances, such action.