Smith Act

Formally known as the Alien Registration Act of 1940, the Smith Act was a response to the increasing popularity of both the Communist Party and fascist groups during the 1930s. Calls for a federal statute like the Smith Act had been constant since 1935, when the McCormack-Dickstein Committee had investigated both left-wing and right-wing activities. Introduced by Rep. Howard Smith of Virginia, the law’s passage in 1940 was aided by the Soviet Union’s signing of the Ribbentrop-Molotov pact with Nazi Germany and both countries’ invasion of Poland. The Smith Act made it a criminal offense for anyone to advocate the violent overthrow of the government of the United States, to organize any association for that purpose, or to become a member of such an association. The law also provided for the deportation of any alien who was convicted of violating any of its criminal provisions.

The earliest use of the Smith Act against a radical group involved members of the Trotskyite Socialist Workers Party in Minneapolis; the jury acquitted many of the defendants and recommended lenient sentences for those convicted. The Great Sedition Trial, a 1944 Smith Act prosecution of twenty-six American fascists, ended in a mistrial after the judge’s death. The better-known prosecutions of national and local leaders of the Communist Party of the United States of America (CPUSA) occurred in four waves. Eleven members of the national leadership were tried in New York in 1949 and 1950. After the Supreme Court upheld their convictions in 1951, the Justice Department indicted sixty-eight second-tier communists. The final two waves of prosecutions occurred in 1954 and 1956, both election years. The Smith Act prosecutions of American communists yielded 140 indictments, ninety-three convictions and ten acquittals. Less than half of those convicted served any jail time; most of the sentences were relatively short.

The Supreme Court decided four major cases involving prosecutions under the Smith Act’s criminal provisions. In Dennis v. United States (1951), the Court sustained the convictions of eleven CPUSA leaders under a broad application of the clear and present danger test, finding that the act of organizing the Communist Party was enough to jeopardize national security, even without overt revolutionary acts on the part of the defendants. In the second major case, Yates v. United States (1957), the convictions of several second-string Communist Party leaders were reversed because the Court found the Smith Act prohibited only ‘‘advocacy of action,’’ not ‘‘advocacy in the realm of ideas,’’ reinterpreting the Smith Act’s criminal provisions closer to traditional understandings of conspiracy and solicitation. In Noto v. United States (1961), the Court reversed a conviction under the membership clause because there was insufficient evidence that the Party advocated ‘‘present,’’ rather than abstract, revolutionary activity. In Scales v. United States, decided the same day as Noto, the Court upheld the conviction of Scales, the only person convicted under the Smith Act after Yates redefined the law, because of his more concrete advocacy of violent political action, including martial arts demonstrations.

DANIEL LEVIN

References and Further Reading

  • Belknap, Michal R. Cold War, Political Justice. Westport, CT: Greenwood, 1977.
  • Stone, Geoffrey R. Perilous Times: Free Speech in Wartime from the Sedition Act of 1798 to the War on Terrorism. New York: W.W. Norton, 2004.

Cases and Statutes Cited

  • Alien Registration Act of 1940, 54 Stat. 670 (1940)
  • Dennis v. United States, 341 U.S. 494 (1951)
  • Noto v. United States, 367 U.S. 290 (1961)
  • Scales v. United States, 367 U.S. 203 (1961)
  • Yates v. United States, 354 U.S. 298 (1957)

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