From the ‘‘Salem witch trials’’ to the criminal prosecutions that constitute part of the government’s ‘‘war on terror,’’ American criminal law has been used to stamp out threats, perceived or actual, to federal and state governments. Federal and state legislatures have proscribed conduct that they believe could challenge their continued existence. Courts, in turn, have generally upheld the constitutionality of these statutes as legitimate exercises of legislative power.
Anarchy and syndicalism have commonly been perceived as threatening to government, and both have been regulated, not surprisingly, in federal and state criminal codes. Criminal anarchy is defined as seeking to overthrow organized government by force, violence, or other unlawful means. Criminal syndicalism is generally defined as advocating or aiding and abetting the commission of sabotage or unlawful acts of force, violence, or terrorism for the sake of accomplishing a change in industrial ownership or control. More specifically, criminal syndicalism is understood to encompass such actions when those involved intend to effect political upheaval.
The majority of federal and state criminal codes regulating anarchy and syndicalism have been enacted since the turn of the twentieth century. However, the history of anti-anarchy and anti-syndicalism statutes extends back to the founding of the country. The Sedition Act of 1798, for example, prohibited criticism of the government with the intent to bring it, or any of its high-ranking officials, into contempt or disrepute. While the constitutionality of the Sedition Act was never tested prior to its expiration in 1801, the U.S. Supreme Court has noted that ‘‘the attack upon its validity has carried the day in the court of history’’ (New York Times Co. v. Sullivan, 376 U.S. 254, 276 & n.16, 1964).
Laws such as the Sedition Act were used and threatened to be used against anarchists and syndicalists, notwithstanding the lack of an explicit prohibition on anarchy and syndicalism. Such an express prohibition against either category of conduct did not occur until the early twentieth century. As anticapitalist theories gained worldwide momentum and with the emerging domestic popularity of the Industrial Workers of the World (IWW), state governments quickly enacted laws directly targeting alleged anarchists and syndicalists. Idaho passed the nation’s first antisyndicalism statute in 1917, and twenty-three other states and two territories followed suit by 1922. By 1935, twenty-two states and one territory had passed anti-anarchy statutes. Many of these states were loci of activity of the IWW. States without a significant IWW presence, on the other hand, acted out of fear of an imminent IWW organizing drive or otherwise fell within the grips of the nationwide antiradical and antilabor drives.
Simultaneously, a push for federal anti-syndicalism and anti-anarchy legislation began to take shape. Five anti-syndicalism bills were introduced before Congress in the 1920s and 1930s, only one of which made it out of committee and was subsequently passed by the Senate. This lone bill, however, never came to a vote in the House of Representatives. (Antisyndicalism provisions also found their way into at least nine broader bills [for example, sedition statutes]. However, none of these statutes was enacted.)
Efforts to ban anarchistic conduct on the federal level were more successful. On the eve of World War II, for example, Congress enacted the Alien Registration Act of 1940, 18 U.S.C. } 2385, also known as the Smith Act, which prohibited advocating for the overthrow of the government by force or violence. Upholding the constitutionality of the Smith Act, the U.S. Supreme Court noted: ‘‘That it is within the power of the Congress to protect the Government of the United States from armed rebellion is a proposition which requires little discussion . . . . No one could conceive that it is not within the power of Congress to prohibit acts intended to overthrow the Government by force and violence’’ (Dennis v. United States, 341 U.S. 494, 501, 1951, plurality; see also Yates v. United States, 355 U.S. 66, 1957).
Although the Smith Act has not been repealed, it is seldom used because, after Yates, the government must prove that a defendant actually intended to advocate forcible overthrow of the government, a burden that is difficult, if not impossible, to satisfy in most cases. On the state side, few anti-anarchy and anti-syndicalism laws have been repealed outright, though many states have deleted provisions proscribing mere membership in an organization promoting anarchy or syndicalism. When these state laws were first challenged, ten state supreme courts and the U.S. Supreme Court upheld them as constitutional. (See, for example, Whitney v. California, 274 U.S. 357, 1927; Fiske v. Kansas, 274 U.S. 380, 1927; Gitlow v. New York, 268 U.S. 652, 1925; Ex parte McDermott, 183 P. 437, Cal. 1919, per curiam; Berg v. State, 233 P. 497, Ok. 1925; State v. Moilen, 167 N.W. 345, Minn. 1918).
Eventually, however, the judicial tide began to turn, culminating in the U.S. Supreme Court’s opinion in Brandenburg v. Ohio, 395 U.S. 444 (1969) (per curiam). The Brandenburg Court reviewed the constitutionality of Ohio’s criminal syndicalism act, which punished individuals who ‘‘advocate or teach the duty, necessity, or propriety of violence as a means of accomplishing industrial or political reform . . . or who voluntarily assemble with a group formed to teach or advocate the doctrines of criminal syndicalism.’’ Striking down the statute as unconstitutional, the Court declared that ‘‘constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action’’ (at 447).
In reaching this decision the court overturned the Whitney and Fiske line of cases, thereby striking a middle ground: anti-anarchy and antisyndicalism statutes may pass constitutional muster when written and construed narrowly to proscribe only conduct that was intended to, and in fact will, produce imminent lawless action.
The line between lawful advocacy and unlawful incitement is blurry and, in some cases, arbitrary. The history of anti-anarchy and anti-syndicalism acts suggests that the line between advocacy and incitement is unlikely to be tested unless and until the government believes a significant threat exists to its security. However, in light of recent attempts to combat terrorism, it is not inconceivable to imagine circumstances under which the government might employ anti-anarchy and anti-syndicalism legislation to punish potentially threatening conduct or fervent dissent.
ADAM B. WOLF
References and Further Reading
Cases and Statutes Cited
See also Alien and Sedition Acts (1798); Freedom of Speech and Press: Nineteenth Century