treet corner, or circulation of a few incendiary pamphlets
or parading by some zealots behind a red flag, or refusal of a handful
of school children to salute our flag, it is not beyond the capacity of
the judicial process to gather, comprehend, and weigh the necessary
materials for decision whether it is a clear and present danger of
substantive evil or a harmless letting off of steam. It is not a
prophecy, for the danger in such cases has matured by the time of trial
or it was never present. The test applies and had meaning where a
conviction is sought to be based on a speech or writing which does not
directly or explicitly advocate a crime but to which such tendency is
sought to be attributed by construction or by implication from external
circumstances. The formula in such cases favors freedoms that are vital
to our society, and, even if sometimes applied too generously, the
consequences cannot be grave. But its recent expansion has extended, in
particular to Communists, unprecedented immunities. Unless we are to
hold our Government captive in a judge-made verbal trap, we must
approach the problem of a well-organized, nation-wide conspiracy, such
as I have described, as realistically as our predecessors faced the
trivialities that were being prosecuted until they were checked with a
rule of reason. I think reason is lacking for applying that test to this
case."[226] And again, "What really is under review here is a conviction
of conspiracy, after a trial for conspiracy, on an indictment charging
conspiracy, brought under a statute outlawing conspiracy. With due
respect to my colleagues, they seem to me to discuss anything under the
sun except the law of conspiracy. One of the dissenting opinions even
appears to chide me for 'invoking the law of conspiracy.' As that is the
case before us, it may be more amazing that its reversal can be proposed
without even considering the law of conspiracy. The Constitution does
not make conspiracy a civil right. The Court has never before done so
and I think it should not do so now. Conspiracies of labor unions, trade
associations, and news agencies have been condemned, although
accomplished, evidenced and carried out, like the conspiracy here,
chiefly by letter-writing, meetings, speeches and organization. Indeed,
this Court seems, particularly in cases where the conspiracy has
economic ends, to be applying its doctrines with increasing severity.
While I consider criminal conspiracy