Significantly, however, the judge refused several instructions requested by the defense that aimed to infuse the “clear and present danger” test into the interpretation of the statute.^[84]  Considering the evidence and the instructions, few were surprised when the jury reached a verdict of guilty on May 2, 1923.^[85]   

Ruthenberg’s brief to the Michigan Supreme Court was filed on September 19, 1924.^[86]  It challenged the criminal syndicalism act as unconstitutional on its face and as applied, under both the Michigan Constitution and the federal Fourteenth Amendment, on several grounds:^[87]

1.      On its face, the Michigan criminal syndicalism act is void for vagueness:  the provisions of the Michigan statute “are too vague, uncertain and indefinite to form the basis of a prosecution for crime.”^[88]

2.      On its face, the Michigan criminal syndicalism act violates freedoms of speech and association guaranteed by the state constitution and the Fourteenth Amendment: the Michigan statute punishes “as a felony the enunciation of a doctrine without the intent, the occasion, . . . or the imminent result of such enunciation,” in violation of state and federal guarantees of free speech and association.^[89]

3.      As applied, the Michigan criminal syndicalism act violates Ruthenberg’s freedoms of speech and association guaranteed by the state constitution and the Fourteenth Amendment:  by the information or evidence adduced by the state at trial, it does not appear (a) “that the assemblage in question by any teaching or advocacy gave rise to imminent danger of criminal injury to any persons or property, or to any governmental establishment or operation, or to the public peace or welfare in any respect,” and (b) “that there was any attempt or intent, either by the alleged unlawful assemblage or by [Ruthenberg] as a participant therein, to solicit, induce, incite or promote any acts of criminal injury under circumstances involving a clear and present danger of the consummation of such injury.”^[90]

These arguments were brushed aside by the Michigan Supreme Court.  On December 10, 1924, the court unanimously upheld Ruthenberg’s conviction.  The opinion was intemperate and contemptuous.  To the claim of vagueness, the court declared: “The naivete of this should make a Communist smile.  One need read but little to discover what the terms sabotage and violence mean .  .  .  .  Sabotage has had a well understood meaning ever since French industrial workers threw their sabots, or wooden shoes, into machinery”^[91]  Ruthenberg’s second claim of facial unconstitutionality fared no better: “This statute reaches an abuse of the right to freely speak, write and publish sentiments, and is squarely within the accountability allowed to be exacted .  .  .  .  The reasons advanced here against the constitutionality of the act have been urged against similar acts in other jurisdictions and found to have no merit.”^[92]