1940 June 29

An Idea is Illegal: Smith Act Passed


Congress on this day passed the Smith Act, officially the Alien Registration Act of 1940, making it a crime to advocate the overthrow of the government. The law, significantly, criminalized advocacy and not specific actions related to the violence overthrow of the government.

The Supreme Court, in Dennis v. United States, decided on June 4, 1951, upheld the constitutionality of the Smith Act in a case involving the prosecution of the top leaders of the Communist Party. Civil libertarians regarded the Dennis decision as a a major blow to the First Amendment, because at trial the government introduced no evidence linking the defendants with any acts directed toward the violent overthrow of the government and instead relied entirely on ideas expressed by them.

The Court limited the scope of the Smith Act in Yates v. United States, on June 17, 1957, one of the famous “Red Monday” decisions that limited various anti-Communist measures. In Yates, the Court held that the actions of the defendants did not pose a “clear and present danger.” Yates essentially ended the government’s use of the Smith Act.

Outlawed: “ . . . knowingly or willfully advocates, abets, advises, or teaches the duty, necessity, desirability, or propriety of overthrowing or destroying the government of the United States or the government of any State, Territory, District or Possession thereof, or the government of any political subdivision therein, by force or violence, or by the assassination of any officer of any such government . . . .”

Learn more about the Smith Act and its history: http://constitution.findlaw.com/amendment1/annotation13.html

Learn more: Geoffrey Stone, Perilous Times: Free Speech in Wartime from the Sedition Act of 1798 to the War on Terrorism (2004)

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