[5] The Oregon Supreme Court upheld his conviction, ruling that the indictment did not charge De Jonge with criminal syndicalism, but rather that he "presided at, conducted and assisted in conducting an assemblage of persons, organization, society and group called by the Communist Party, which was unlawfully teaching and advocating in Multnomah county the doctrine of criminal syndicalism and sabotage."

Chief Justice Charles Evans Hughes delivered the opinion of the Court, which unanimously reversed De Jonge's conviction.

As Hughes explained, "[De Jonge's] sole offense as charged, and for which he was convicted and sentenced to imprisonment for seven years, was that he had assisted in the conduct of a public meeting, albeit otherwise lawful, which was held under the auspices of the Communist Party....

In poignant and powerful passages, he explained: [Freedom of assembly] cannot be denied without violating those fundamental principles of liberty and justice which lie at the base of all civil and political institutions.

"[13] As Hughes emphasized in finishing his opinion, the Court accepted the finding that the Communist Party was constantly engaged in criminal syndicalism and attempting to overthrow the government, in Multnomah County and elsewhere.

But De Jonge nevertheless had a constitutional right "to discuss the public issues of the day and thus in a lawful manner, without incitement to violence or crime, to seek redress of alleged grievances.

Over three decades later, the Supreme Court declared a criminal syndicalism law unconstitutional on its face in Brandenburg v. Ohio (1969), overruling Whitney and casting serious doubt on Gitlow.