Smith Act of 1940

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Smith Act of 1940


By: Howard W. Smith

Date: 1940

Source: 18 U.S. Code § 2385 (2000) Advocating Over-throw of Government.

About the Author: The Alien Registration Act of 1940, usually called the Smith Act after its author, Representative Howard W. Smith of Virginia, is the chief federal sedition law. The legislation makes it unlawful to conspire to advocate the violent overthrow of the government and to organize a group to do so. Smith, a conservative Democrat from Virginia, spent most of his political career opposing foreign radicals, labor unions, civil rights for African Americans, and most domestic spending. After heading the powerful House Rules Committee, Smith lost a reelection bid in 1966. He died in 1976.


On the eve of World War II, with strong anti-foreign sentiment sweeping the country, the United States Congress passed the Smith Act in 1940. While alleged Nazi sympathizers were among the first charged under the law in 1943, the Smith Act was most often used to target communists. For several years the wartime alliance between the U.S. and Soviet Union protected American communists, but by 1948 Russian-American relations deteriorated when the Cold War began.

In 1948, the Truman Administration decided to shut down the Communist Party of the U.S.A. (CPUSA). The attorney general secured an indictment on July 20, 1948 charging the eleven members of the party's National Board with violation of the Smith Act. The CPUSA responded to this political prosecution with a political defense. It mounted a massive propaganda campaign, designed to mobilize the public behind a demand that the government drop the charges. When few people came to the defense of the communists, the CPUSA carried their struggle into the courtroom in an effort to criticize the suppression of dissent by American society and government.

Meanwhile, the Truman administration presented an equally political case, largely ignoring the defendants in an attempt to put the CPUSA on trial. The prosecution characterized the CPUSA as a disloyal, dangerous, and dishonest organization, whose disclaimers of intent to overthrow the government by violence could not be believed.

The communists were convicted on October 14, 1949. Influenced by the Cold War atmosphere, appellate courts confirmed the constitutionality of the Smith Act. The U.S. Supreme Court upheld the conviction on June 4, 1951, with the dissenting justices declaring the violence is rarely stopped by denying civil liberties to those advocating force. Following the Supreme Court decision, lower-level communist officers, editors, and teachers were indicted in an effort to eradicate communism. As a result, the CPUSA essentially ended.


. . . Whoever 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; or

Whoever, 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

Whoever 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—

Shall be fined under this title or imprisoned not more than twenty years, or both, and shall be ineligible for employment by the United States or any department or agency thereof, for the five years next following his conviction.

If two or more persons conspire to commit any offense named in this section, each shall be fined under this title or imprisoned not more than twenty years, or both, and shall be ineligible for employment by the United States or any department or agency thereof, for the five years next following his conviction.

As used in this section, the terms "organizes"and "organize," with respect to any society, group, or assembly of persons, include the recruiting of new members, the forming of new units, and the regrouping or expansion of existing clubs, classes, and other units of such society, group, or assembly of persons.


The convictions of the eleven CPUSA leaders affected tens of thousands of other Americans, including rank and file communist members as well as those sympathetic to communism and those suspected of being sympathetic to communism. The convictions encouraged some judges, legislators, and other government officials to limit the constitutional rights of free speech of others not affiliated with the Communist Party. The House Committee on Un-American Activities and the Internal Security Committee in the Senate specialized in calling witnesses before them to answer questions concerning communism. These witnesses were confronted with the choice of either answering such questions, which usually involved the naming of other individuals and carried with it the danger of prosecution, or refusing to testify at all. Witnesses who failed to cooperate with these committees faced ostracism. It soon became customary to fire these people from their jobs, whether in factories, colleges, government, or business. Repression spread to the point where suspected communist sympathizers were banned from professional societies and denied housing.

The Smith Act had consequences outside of the United States. In its propaganda, the Soviet Union emphasized the contrast between American claims of democratic freedom and actual practice. In an era when the U.S. sought to present its best face to the world in order to win support, some foreign interests accused the U.S. of being driven by fear of free speech and retreating from fostering open, democratic debate.

A number of liberal organizations including the American Civil Liberties Union and the Southern California-Arizona Conference of the Methodist Church sought a Supreme Court review of the Smith Act. In 1957, in Yates v. United States, the Supreme Court handed down a decision which construed the Smith Act far more narrowly than had government attorneys conducting the attack on the CPUSA. The Court decided that the Smith Act did not prohibit the advocacy and teaching of forcible overthrow as an abstract principle, divorced from any effort to actually instigate action to that effect. The decision effectively halted Justice Department prosecutions of communists. The court freed five of the communists and ordered new trials for the rest in a six to one vote.

By the middle of 1962, the last of the convicted Communists had finished serving their prison sentences or had received commutations. By 1963, the Smith Act had fallen into disuse. It is still on the books, but it is regarded as a relic of the Cold War. Supreme Court opposition makes it unlikely that the government will again employ the conspiracy, advocacy, or membership provisions of the Smith Act against a dissident organization. Some provisions of the Smith Act have been superceded by the U.S. Patriot Act of 2001.



American Civil Liberties Union. The Smith Act and the Supreme Court: An American Civil Liberties Union Analysis, Opinion and Statement of Policy. New York: American Civil Liberties Unions, 1952.

Belknap, Michal R. Cold War Political Justice: The Smith Act, the Communist Party, and American Civil Liberties. Westport, Conn.: Greenwood Press, 1977.

Starobin, Joseph R. American Communism in Crisis, 1943–1957. Berkeley: University of California Press, 1972.