WISDOM, Circuit Judge:
Timothy Leary appeals from the district court’s denial of bail pending his appeal from his conviction for importing marijuana in violation of 21 U.S.C. § 176a. We deny his application to this Court for bail but remand the case to the district court for a hearing on whether Leary has met all the constitutional and statutory requirements for bail pending appeal. Leary’s original conviction was reversed by the Supreme Court in Leary v. United States, 1969, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57, rev’g 5 Cir. 1968, 383 F.2d 851, rehearing en banc denied, 392 F.2d 220. The Supreme Court reversed outright the conviction under 26 U.S.C. § 4744(a) (2), but reversed and remanded to this Court the conviction under 21 U.S.C. § 176a. September 1969 this Court remanded the case to the United States District Court for the Southern District of Texas for further proceedings consistent with the opinion of the Supreme Court. In January 1970 the applicant was re-tried and found guilty by a jury on one count of violating 21 U.S.C. § 176a. March 2, 1970, he was sentenced to serve ten years in the federal penitentiary.
At the conclusion of the sentencing proceedings, the applicant requested that he be allowed to be enlarged on bail pending appeal of his case to this Court.1 The district court denied the request:
I think under section 3148 of Title 18 I would deny bond during the course of appeal. I have no doubt that the defendant would appear, but I have reason to believe that he, if at large, would pose a danger to other persons or to the community. I think his conduct over the past years, particularly since the time that he was tried here before, has been such as to lead me to believe, at least, that he has openly advocated a violation of these laws. He has preached it the length and breadth of the land, and I am inclined to the view that he would pose a danger to the community if released. (Emphasis added.)
Counsel for Leary asked the trial judge if the conclusion that the defendant would be a danger to the community represented findings of fact. The trial judge answered, “No, that is not a finding of fact.” Counsel then requested a hearing on the issue of Leary’s “danger to persons or community”.
[87]*87It is my understanding that what you are saying is that because he has advocated, because he has exercised the right of speech, not having performed any other criminal act, that he is to be remanded, and it is that which I think you are suggesting makes him a menace to the community. I would like the record to be clear that I would like a hearing on the question, because I think the burden falls, under 3148, to the United States Attorney, at least in the first instance, to show that he is a menace to the community. And if he does not have that burden, it seems to me that we are entitled to show that far from being a burden on the community, here is someone that enhances the community.
Section 3148 of Title 18, U.S.C. states:
A person (1) who is charged with an offense punishable by death, or (2) who has been convicted of an offense and is either awaiting sentence or has filed an appeal or a petition for a writ of certiorari, shall be treated in accordance with the provisions of section 3146 unless the court or judge has reason to believe that no one or more conditions of release will reasonably assure that the person will not flee or pose a danger to any other person or to the community. If such a risk of flight or danger is believed to exist, or if it appears that an appeal is frivolous or taken for delay, the person may be ordered detained. * * *
A person, therefore, who has been convicted of an offense and is either awaiting sentence or has filed an appeal is to be released under the same conditions as if he were awaiting trial2 unless one of four circumstances is present. Release pending appeal may be [88]*88denied (1) if it appears that the appeal is frivolous, or (2) if it appears that the appeal is taken for delay, or (3) if the court or judge has reason to believe that no one or more conditions of release will reasonably assure that the person will not flee, or (4) if the court or judge has reason to believe that the defendant poses a threat to any other person or to the community.
I.
Leary argues first, that his appeal is not frivolous and not offered merely for delay. He contends that the government failed to prove transportation of the marijuana after importation contrary to law and that § 176a as applied violates his privilege against self-incrimination. The government contends that these arguments are foreclosed by a reasonable interpretation of this Court’s decisions in Rule v. United States, 5 Cir. 1966, 362 F.2d 215 and Walden v. United States, 5 Cir. 1969, 417 F.2d 698. Whether Rule and Walden will be interpreted to foreclose Leary’s appeal as the government urges is not the question before us. We must decide only whether Leary’s appeal is frivolous.
Rule 46(a) (2) of the Federal Rules of Criminal Procedure originally provided that
Bail may be allowed pending appeal or certiorari only if it appears that the case involves a substantial question which should be determined by the appellate court, (emphasis added.)
The Supreme Court amended subdivision (a) (2) in 1956 to provide for bail “unless it appears that the appeal is frivolous or taken for delay”.3 The new [89]*89standard was intended to liberalize the granting of bail pending appeal, and it is this lighter standard that was taken without change into the Bail Reform Act of 1966, 18 U.S.C. §§ 3141-3152. See C. Wright, Federal Practice and Procedure § 767 (1969).
Under the standards of the pre-1956 Rule, a question that was fairly debatable was considered “substantial”. D’Aquino v. United States, 9 Cir., 1950, 180 F.2d 271 (Opinion of Circuit Justice Douglas). A fortiori, such a question cannot now be considered frivolous.
We hold that the constitutional argument is not so insubstantial that the appeal should be held to be frivolous and foreclosed by Rule and Walden.
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WISDOM, Circuit Judge:
Timothy Leary appeals from the district court’s denial of bail pending his appeal from his conviction for importing marijuana in violation of 21 U.S.C. § 176a. We deny his application to this Court for bail but remand the case to the district court for a hearing on whether Leary has met all the constitutional and statutory requirements for bail pending appeal. Leary’s original conviction was reversed by the Supreme Court in Leary v. United States, 1969, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57, rev’g 5 Cir. 1968, 383 F.2d 851, rehearing en banc denied, 392 F.2d 220. The Supreme Court reversed outright the conviction under 26 U.S.C. § 4744(a) (2), but reversed and remanded to this Court the conviction under 21 U.S.C. § 176a. September 1969 this Court remanded the case to the United States District Court for the Southern District of Texas for further proceedings consistent with the opinion of the Supreme Court. In January 1970 the applicant was re-tried and found guilty by a jury on one count of violating 21 U.S.C. § 176a. March 2, 1970, he was sentenced to serve ten years in the federal penitentiary.
At the conclusion of the sentencing proceedings, the applicant requested that he be allowed to be enlarged on bail pending appeal of his case to this Court.1 The district court denied the request:
I think under section 3148 of Title 18 I would deny bond during the course of appeal. I have no doubt that the defendant would appear, but I have reason to believe that he, if at large, would pose a danger to other persons or to the community. I think his conduct over the past years, particularly since the time that he was tried here before, has been such as to lead me to believe, at least, that he has openly advocated a violation of these laws. He has preached it the length and breadth of the land, and I am inclined to the view that he would pose a danger to the community if released. (Emphasis added.)
Counsel for Leary asked the trial judge if the conclusion that the defendant would be a danger to the community represented findings of fact. The trial judge answered, “No, that is not a finding of fact.” Counsel then requested a hearing on the issue of Leary’s “danger to persons or community”.
[87]*87It is my understanding that what you are saying is that because he has advocated, because he has exercised the right of speech, not having performed any other criminal act, that he is to be remanded, and it is that which I think you are suggesting makes him a menace to the community. I would like the record to be clear that I would like a hearing on the question, because I think the burden falls, under 3148, to the United States Attorney, at least in the first instance, to show that he is a menace to the community. And if he does not have that burden, it seems to me that we are entitled to show that far from being a burden on the community, here is someone that enhances the community.
Section 3148 of Title 18, U.S.C. states:
A person (1) who is charged with an offense punishable by death, or (2) who has been convicted of an offense and is either awaiting sentence or has filed an appeal or a petition for a writ of certiorari, shall be treated in accordance with the provisions of section 3146 unless the court or judge has reason to believe that no one or more conditions of release will reasonably assure that the person will not flee or pose a danger to any other person or to the community. If such a risk of flight or danger is believed to exist, or if it appears that an appeal is frivolous or taken for delay, the person may be ordered detained. * * *
A person, therefore, who has been convicted of an offense and is either awaiting sentence or has filed an appeal is to be released under the same conditions as if he were awaiting trial2 unless one of four circumstances is present. Release pending appeal may be [88]*88denied (1) if it appears that the appeal is frivolous, or (2) if it appears that the appeal is taken for delay, or (3) if the court or judge has reason to believe that no one or more conditions of release will reasonably assure that the person will not flee, or (4) if the court or judge has reason to believe that the defendant poses a threat to any other person or to the community.
I.
Leary argues first, that his appeal is not frivolous and not offered merely for delay. He contends that the government failed to prove transportation of the marijuana after importation contrary to law and that § 176a as applied violates his privilege against self-incrimination. The government contends that these arguments are foreclosed by a reasonable interpretation of this Court’s decisions in Rule v. United States, 5 Cir. 1966, 362 F.2d 215 and Walden v. United States, 5 Cir. 1969, 417 F.2d 698. Whether Rule and Walden will be interpreted to foreclose Leary’s appeal as the government urges is not the question before us. We must decide only whether Leary’s appeal is frivolous.
Rule 46(a) (2) of the Federal Rules of Criminal Procedure originally provided that
Bail may be allowed pending appeal or certiorari only if it appears that the case involves a substantial question which should be determined by the appellate court, (emphasis added.)
The Supreme Court amended subdivision (a) (2) in 1956 to provide for bail “unless it appears that the appeal is frivolous or taken for delay”.3 The new [89]*89standard was intended to liberalize the granting of bail pending appeal, and it is this lighter standard that was taken without change into the Bail Reform Act of 1966, 18 U.S.C. §§ 3141-3152. See C. Wright, Federal Practice and Procedure § 767 (1969).
Under the standards of the pre-1956 Rule, a question that was fairly debatable was considered “substantial”. D’Aquino v. United States, 9 Cir., 1950, 180 F.2d 271 (Opinion of Circuit Justice Douglas). A fortiori, such a question cannot now be considered frivolous.
We hold that the constitutional argument is not so insubstantial that the appeal should be held to be frivolous and foreclosed by Rule and Walden.
II.
We turn next to the issue of whether Leary represents a danger to other persons and to the community within the meaning of 18 U.S.C. § 3148. The burden is upon the government to demonstrate that the applicant does represent such a threat. Ward v. United States, 1956, 76 S.Ct. 1063, 1 L.Ed.2d 25.
In opposing Leary’s application, the government has advanced a number of reasons why it believes that Leary presents a danger to the community. (1) The applicant’s history and writings demonstrate that he has persistently advocated the use of narcotic drugs in violation of the laws of the United States and of the several states and in this respect he goes substantially beyond the mere abstract on advocacy of ideas and conduct which is privileged under the first amendment. (2) The applicant has openly and continuously violated the narcotics laws and has organized and attended meetings in which large numbers of persons take drugs. (3) The applicant was associated with a ranch in Riverside County, California, where two persons allegedly died as a result of the ingestion of drugs. (4) The applicant was convicted March 16 of violating § 11530 of the California Health and Safety Code (possession of marijuana). (5) The applicant is reputedly one of twelve partners of the Brotherhood of Eternal Love, an organization thought to be engaged in the supply of narcotics allegedly obtained from the Mafia.
The district court, in deciding that Leary did represent a threat to the community, relied solely on the ground that he had “openly advocated” the use of drugs in violation of the law.
The district court’s holding raises a serious constitutional question. If the “danger” referred to in § 3148 includes mere “advocacy” of the use of illegal drugs or of other law violations, the section offends the constitutional guaranty of freedom of speech. See, for example, the recent decision, Brandenburg v. Ohio, 1969, 395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d 430. And if the appellant’s eligibility to be enlarged on bail under the Eighth Amendment may be lost because he exercises his first amendment right to freedom of speech and to freedom of the press, then Section 3146 .imposes an unconstitutional condition. To avoid holding the statute unconstitutional, one must construe the term “danger” as conduct, not advocacy falling short of actual incitement to imminent unlawful conduct.
In Williamson v. United States, 2 Cir. 1950, 184 F.2d 280, Mr. Justice Jackson, sitting as Circuit Justice for the Second [90]*90Circuit, was confronted with a similar problem when Communist Party leaders were convicted for conspiring to advocate the violent overthrow of the United States Government and to organize the Communist Party for that purpose in violation of 18 U.S.C. § 2385. After the defendant’s convictions had been affirmed by the Court of Appeals, the government asked that bail be revoked. One of the grounds for the requested revocation was that the defendants, while at large, pursued and would continue to pursue a course of conduct and activity dangerous to the public welfare, safety, and national security of the United States. Mr. Justice Jackson pointed out:
If I assume that defendants are disposed to commit every opportune disloyal act helpful to Communist countries, it is still difficult to reconcile with traditional American law the jailing of persons by the courts because of anticipated but as yet uncommitted crimes. Imprisonment to protect society from predicted but unconsummated offenses is so unprecedented in this country and so fraught with danger of excesses and injustice that I am loath to resort to it, even as a discretionary judicial technique to supplement conviction of such offenses as those of which defendants stand convicted.
184 F.2d at 282-283. The past activities that the government contended were dangerous consisted entirely of making speeches and writing articles or editorials chiefly for the Communist Party organ the Daily Worker. These articles however, did not advocate the violent overthrow of the government, a crime under 18 U.S.C. § 2385. Rather, the articles were characterized by Mr. Justice Jackson as “inciting, as all opposition speaking or writing that undermines confidence and increases discontent may be said to be incitement.” 184 F.2d at 283. The utterances themselves were not criminal, but protected by the Bill of Rights. Since the government could not reach them directly, Mr. Justice Jackson concluded that the courts could not reach out and stop them indirectly by denying bail.
[Cjourts should not utilize their discretionary powers to coerce men to forego conduct as to which the Bill of Rights leaves them free. Indirect punishment of free press or free speech is as evil as direct punishment of it. Judge Cardozo wisely warned of “the tendency of a principle to. expand itself to the limit of its logic.” [Cardozo, Nature of the Judicial Process 51]. If the courts embark upon the practice of granting or withholding discretionary privileges or procedural advantages because of expressions or attitudes of a political nature, it is not difficult to see that within the limits of its logic the precedent could be carried to extremeties to suppress or disadvantage political opposition * * *.
184 F.2d at 283.
The government does not contend that Leary’s utterances in themselves are criminal. Rather, the government is concerned primarily with the impact of Leary’s advocacy on large numbers of persons, specifically juveniles. It was solely for this reason that the district court denied Leary’s application. We do not underestimate the effect the applicant may already have had on today’s youth. But Leary held in jail, pending appeal, without bail, on grounds previously held to be constitutionally unacceptable, poses a more serious threat to the integrity of our system of laws than does a Leary enlarged on bail in accordance with established rules of law and the decisions and practices of the courts —after a hearing on the issue.4
[91]*91The record, as is not surprising, does not show supporting evidence for the contentions the Government advances for opposing Leary’s release on bail. Their truth and their probable effect in terms of the applicant’s danger to the community can be determined only after a proper hearing. If any of the Government’s allegations are true and if they go beyond mere advocacy, extenuating circumstances or the imposition of appropriate conditions may justify the applicant’s release on reasonable bail. In any event, in this case the Bill of Rights compels an evidentiary hearing.
We take note that the Government has informed this Court that if we should conclude that the denial of bail is not sufficiently supported by the record, the Government requests that the applicant not be released without a hearing at which it will “present evidence showing that the appellant, if left at large, will be a menace to the community”. Carbo v. United States, 1962, 82 S.Ct. 662, 7 L.Ed.2d 769, and United States v. Erwing, N.D.Cal.1968, 280 F.Supp. 814 clearly demonstrate the value to be derived by a hearing on the merits of an application for bail pending appeal. Nothing we say in this opinion, however, should be construed as expressing the view that Leary should or should not be released on bail.
On remand, the government will bear the burden of substantiating the reasons why it believes that by allowing Leary to be enlarged on bail he will be a “danger” to the community within the meaning of § 3148. See Ward v. United States, 1956, 76 S.Ct. 1063, 1 L.Ed.2d 25; Rhodes v. United States, 4 Cir. 1960, 275 F.2d 78.
One further observation and we conclude our discussion. The presentence report submitted by the Office of the Probation Officer contains information relating to charges which have been filed against Leary in other jurisdictions. The disposition of these charges is not clear from the report. We are of the opinion that a proper disposition of this application requires that this information be made available to the district court.
It is therefore ordered:
1) The application of Timothy Leary for bail pending appeal is denied.
2) The case is remanded to the district court for an expeditious hearing on the merits of the application for bail pending appeal.
3) If the district court, after holding the hearing as ordered, should refuse release pending appeal, or impose conditions of release, the court should state in writing the reasons for the action taken. F.R.A.P. 9(b).
4) The motion filed by the American Civil Liberties Union for leave to file a brief as amicus curiae is denied without prejudice to its right to renew its request in the district court.
Accordingly, this case is remanded for further proceedings consistent with this opinion.