Advocating 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 violent overthrow of the government. The law, significantly, criminalized advocacy and not specific actions related to the violent overthrow of the government.
Interestingly, in the intense national security atmosphere of 1939-1940, with war in Europe and Asia, no representatives of the American Communist Party, the obvious target of the law, appeared to testify at either the Senate or the House hearings. Only a few left-wing labor unions testified. The ACLU testified in opposition to the law in both the Senate and the House.
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.
After the Dennis decision, the Justice Department embarked on prosecutions of what were called “Second Tier” Communist Party leaders. In cases in 15 separate cities (including Cleveland, Seattle, Philadelphia, Denver, and others), 144 people were prosecuted and over 100 were convicted.
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)