The Alien Registration Act or Smith Act (18 U.S.C. § 2385) of 1940 is a United States federal statute that set criminal penalties for advocating the overthrow of the U.S. government and required all non-citizen adult residents to register with the government.
The Act is best known for its use against political organizations and figures, with approximately 215 Americans indicted under terms of the legislation, including alleged communists, Trotskyists, and fascists. Prosecutions continued under the Smith Act until a series of United States Supreme Court decisions in 1957 reversed a number of convictions so obtained as unconstitutional. The statute has not been repealed.
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The Act was proposed by Congressman Howard W. Smith of Virginia, a Democrat and a leader of the "anti-labor" bloc of congressmen.[1] The bill was signed into law by President Franklin D. Roosevelt. Within four months, 4,741,971 aliens had registered.
The Act set federal criminal penalties that included fines or imprisonment for as long as twenty years and denied all employment by the federal government for five years following a conviction for anyone who:
"...with intent to cause the overthrow or destruction of any such government, prints, publishes, edits, issues, circulates, sells, distributes, or publicly displays any written or printed matter advocating, advising, or teaching the duty, necessity, desirability, or propriety of overthrowing or destroying any government in the United States by force or violence, or attempts to do so; or...organizes or helps or attempts to organize any society, group, or assembly of persons who teach, advocate, or encourage the overthrow or destruction of any such government by force or violence; or becomes or is a member of, or affiliates with, any such society, group, or assembly of persons, knowing the purposes thereof.
The first trial, in 1941 was targeted on Trotskyists, primarily those in the Socialist Workers Party (SWP). The second, held in 1944, singled out 30 alleged fascists. Beginning in 1949, leaders and members of the Communist Party USA (CPUSA) were targeted. In addition to the 30 alleged fascists prosecuted in 1944, a total of more than 185 leaders of the SWP and CPUSA were indicted under the Smith Act between 1941 and 1956.[2]
In Minneapolis in 1941, leaders of the Trotskyist SWP and activists with Local 544 of the Teamsters union there.
SWP defendants included James P. Cannon, Carl Skoglund, Farrell Dobbs, Grace Carlson, Harry DeBoer, Max Geldman, Albert Goldman and twelve other party leaders. Goldman also acted as the defendants' lawyer during the trial. The SWP had been influential there since the Minneapolis Teamsters Strike of 1934. The SWP had advocated strikes and the continuation of labor union militancy during World War II under its Proletarian Military Policy, while the US Communist Party had become an advocate of a no-strike pledge since the Nazi invasion of the USSR. An SWP member edited the Northwest Organizer, the weekly newspaper of the Minneapolis Teamsters, and the local remained militant even as the national union under IBT leader Daniel J. Tobin grew more conservative.
On June 27, 1941, Federal Bureau of Investigation (FBI) raided the SWP's offices in Minneapolis and St. Paul and seized large quantities of communist literature. Several weeks later, a federal grand jury indicted twenty-eight people, either members of the SWP or Local 544, or both, and charged them with violating the 1861 Sedition Act, which had never before been used, and the Smith Act. The defendants were accused of plotting to overthrow the United States government. The trial began in Federal District Court in Minneapolis on October 27, 1941.
The prosecution relied principally on public statements made by the SWP and its leaders as well as the Communist Manifesto and writings by Vladimir Lenin and Leon Trotsky. The evidence regarding insubordination of the armed forces consisted of oral testimony by two government witnesses to the effect that one or two defendants had told them that soldiers should be induced to "kick" (complain) about food and living conditions.
Five of the defendants were acquitted on both counts by direction of the judge due to lack of evidence at the conclusion of the prosecution's case. After 56 hours of deliberation, the jury found the twenty-three remaining defendants not guilty of count one of the indictment in which the state charged the accused with violating the 1861 statute by conspiring to overthrow the government by force. The jury found eighteen of the defendants guilty of count two of the indictment, which charged violation of the Smith Act by distributing written material designed to cause insubordination in the armed forces and charged that they had acted to "advocate, abet, advise and teach the duty, necessity, desirability and propriety of overthrowing the government by force and violence."
On December 8, 1941, twelve defendants received 16-month sentences and the remaining eleven received 12-months. After unsuccessful appeals and the refusal of the United States Supreme Court to review the case, those convicted began to serve their sentences on December 31, 1943. The last prisoners were released in February 1945.
The Communist Party supported the trial and conviction of Trotskyists under the Smith Act. Attorney General Francis Biddle later regretted having authorized the prosecution.[3]
The so-called Great Sedition Trial of 1944 followed from a series of indictments issued in Washington, D.C. against a group of some 30 prominent individuals accused of sedition and various related violations of the Smith Act. The defendants were alleged to be part of an international Nazi conspiracy, connected with the activities of the Mothers' Movement. The trial arose out of the strongly isolationist and/or allegedly pro-fascist stance of the heterogeneous group of defendants at the height of US involvement in World War II. The New York Evening Enquirer (later the National Enquirer) and its publisher were also initially charged in 1942, but charges were later dropped.
The trial began April 17, 1944, after a number of attempts by Federal authorities to frame charges robust enough to survive grand jury hearings, but was characterised by an inability on the part of prosecutors to prove specific intent to overthrow the government. Rather, it appears to have consisted of months of the prosecutor, O. John Rogge, reading the writings of the defendants to an increasingly weary jury. A mistrial was declared on November 29, 1944, some time after the death of the trial judge, ex-congressman Edward C. Eicher.
In part because of the abject failure of the trial, which ended "in tragedy and farce," it is notable as one of a number in the US in which the dictates of freedom — especially of certain interpretations of freedom of speech — have been set against concepts of national security. The most obvious comparison, from the immediate post-war era, was that of the congressional hearings arising out of Joseph McCarthy's anti-communist allegations.
Among the defendants in the 1944 trial were: George Sylvester Viereck, Lawrence Dennis, Elizabeth Dilling, William Dudley Pelley, Joe McWilliams, Robert Edward Edmondson, Gerald Winrod, William Griffin, Prescott Freese Dennett, and even in absentia notorious antisemitic publisher and propagandist Ulrich Fleischhauer and his Welt-Dienst/World Service.
Members of the Communist Party USA (CPUSA) began facing prosecution beginning in 1949 under the law. Over 140 leaders of the CPUSA, including party leader Eugene Dennis, would stand trial during the early days of the Cold War. Prosecutions continued until a string of decisions by the United States Supreme Court threw out numerous convictions under the Smith Act as unconstitutional.
Eleven leaders of the Communist Party were charged under the Smith Act in 1940, including Gil Green, a long-time party leader; Eugene Dennis and Henry Winston, leaders of the national organization; John Gates, editor of the Daily Worker; and Gus Hall, leader of the party in Ohio. The accusation was that "they conspired... to organize as the Communist Party and willfully to advocate and teach the principles of Marxism-Leninism," which was equated with meaning "overthrowing and destroying the government of the United States by force and violence" at some unspecified future time. They were also accused of conspiring to "publish and circulate...books, articles, magazines, and newspapers advocating the principles of Marxism-Leninism." The Communist Manifesto by Marx and Engels, Lenin's State and Revolution, and Stalin's Foundation of Leninism were introduced as evidence for the prosecution.
After a ten-month trial at the Foley Square Courthouse in Manhattan, ten defendants received sentences of five years and $10,000 fines. An eleventh defendant, Robert G. Thompson – a distinguished hero of the Second World War – was sentenced to three years in consideration of his wartime service.[4] All the defense attorneys, including future Congressman George W. Crockett, were cited for contempt of court and given prison sentences.
The convicted Communists appealed the verdicts, but the Supreme Court upheld their convictions in 1951 in Dennis v. United States by a vote of 6-2, with Justices Hugo Black and William O. Douglas dissenting. Black wrote that the government's indictment was "a virulent form of prior censorship of speech and press" and a violation of the First Amendment.
In 1951, twenty-three other party leaders were indicted, including Claudia Jones and Elizabeth Gurley Flynn, a founding member of the American Civil Liberties Union. By 1957, over 140 leaders and members of the Communist Party had been charged.
The indictments and trials ended in 1957 as the result of a series of Supreme Court decisions. Yates v. United States ruled unconstitutional the convictions of numerous party leaders in a ruling that distinguished between advocacy of an idea for incitement and the teaching of an idea as a concept. The Court ruled 6-1 in Watkins v. United States that defendants could use the First Amendment as a defense against "abuses of the legislative process."
On June 5, 1961, the U.S. Supreme Court upheld by 5-4 the conviction of Junius Scales under the "membership clause" of the Smith Act. Scales began serving a six-year sentence on October 2, 1961. He was released after serving fifteen months when President John F. Kennedy commuted his sentence in 1962.[5]