Criminal Syndicalism Laws
CRIMINAL SYNDICALISM LAWS
Criminal syndicalism statutes were but one of several kinds of statutes punishing manifestations of unpopular thought and expression for their probable bad tendency enacted during and just after world war i by many midwestern and western states. The laws were a response to the economic unrest of the postwar period, specifically to the doctrines and activities of the Industrial Workers of the World (IWW), and to the antiradical hysteria prompted by the Russian Revolution of 1917. Twenty-two states and territories enacted—and eight other states considered but rejected—criminal syndicalism statutes between 1917 and 1920. Attempts to enact a federal criminal syndicalism law in 1919 and 1920 came to nothing, but the Smith Act of 1940 was patterned after the earlier model.
The Idaho statute, the first of its kind and a model for those adopted by other states, defined criminal syndicalism as "the doctrine which advocates crime, sabotage, violence or other unlawful methods of terrorism as a means of accomplishing industrial or political reform." Offenses punished as felonies under such statutes included oral or written advocacy of criminal syndicalism; justifying commission of or attempts to commit criminal syndicalism; printing or displaying written or printed matter advocating or advising criminal syndicalism; organizing or being or becoming a member of any organization organized or assembled to teach or advocate criminal syndicalism, or even presence at such an assembly. Though most citizens and state legislators believed that these statutes were directed solely against the use or advocacy of force and violence, in practice they jeopardized freedom of speech, because they were used to punish those who expressed or even held opinions offensive to the majority of the community.
Criminal syndicalism statutes almost uniformly survived constitutional challenges in the state courts. In whitney v. california (1927) the United States Supreme Court upheld the California Criminal Syndicalism Act; Justice louis d. brandeis's eloquent opinion, concurring only in the result, set forth the most sophisticated formulation of the theoretical foundations and practical applications of the clear and present danger test previously formulated in other first amendment cases. In Fiske v. Kansas (1927), the first decision overturning a conviction under a criminal syndicalism statute, the Supreme Court merely invalidated the statute's application, holding that the state had not shown that the defendant had advocated any but lawful methods to achieve the goals of the IWW. In de jonge v. oregon (1937) a unanimous Court struck down the application of the Oregon Criminal Syndicalism Act to defendants who had merely attended a peaceful meeting of the Communist party; the Oregon legislature later repealed the statute. The labor troubles of the 1930s prompted efforts to strengthen existing criminal syndicalism laws, but these came to nothing, and several states followed Oregon's example in repealing their criminal syndicalism statutes. State criminal syndicalism statutes fell into disuse after the 1930s; in brandenberg v. ohio (1969) the Supreme Court declared the Ohio Criminal Syndicalism Act unconstitutional on its face, overruling Whitney, adopting the principles of Justice Brandeis's concurring opinion, and making successful prosecutions under criminal syndicalism statutes virtually impossible.
Richard B. Bernstein
Dowell, Eldridge Foster 1939 A History of Criminal Syndicalism Legislation in the United States. Baltimore: Johns Hopkins University Studies in Historical and Political Science, Series 57, No. 1.