<P> In Herndon v. Lowry (1937), the Court heard the case of African American Communist Party organizer Angelo Herndon, who had been convicted under the Slave Insurrection Statute for advocating black rule in the southern United States . In a 5--4 decision, the Court reversed Herndon's conviction, holding that Georgia had failed to demonstrate that there was any "clear and present danger" in Herndon's political advocacy . </P> <P> In 1940, Congress enacted the Smith Act, making it illegal to advocate "the propriety of overthrowing or destroying any government in the United States by force and violence". The statute provided law enforcement a tool to combat Communist leaders . Eugene Dennis was convicted in the Foley Square trial for attempting to organize a Communist Party . In Dennis v. United States (1951), the Court upheld the law, 6--2 . Chief Justice Fred M. Vinson relied on Holmes' "clear and present danger" test as adapted by Learned Hand: "In each case (courts) must ask whether the gravity of the' evil', discounted by its improbability, justifies such invasion of free speech as necessary to avoid the danger ." Clearly, Vinson suggested, clear and present danger did not intimate "that before the Government may act, it must wait until the putsch is about to be executed, the plans have been laid and the signal is awaited ." In a concurring opinion, Justice Felix Frankfurter proposed a "balancing test", which soon supplanted the "clear and present danger" test: </P> <P> The demands of free speech in a democratic society as well as the interest in national security are better served by candid and informed weighing of the competing interests, within the confines of the judicial process . </P> <P> In Yates v. United States (1957), the Supreme Court limited the Smith Act prosecutions to "advocacy of action" rather than "advocacy in the realm of ideas". Advocacy of abstract doctrine remained protected while speech explicitly inciting the forcible overthrow of the government was punishable under the Smith Act . </P>

In our first amendment which is not a freedom