2026 is America’s 250th birthyear. To celebrate, I’m highlighting 50+ significant American documents from our history. Find them all under the American Documents tab!
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History remembers the Alien Registration Act of 1940 as “The Smith Act,” mainly because the core writing of it came from Rep. Howard Smith of Virginia. The Act generated the first peacetime federal sedition statute since John Adams was president.
While Hitler was getting his groove on in Europe, America still wasn’t engaged in World War Two—but we weren’t blind to it either, especially not the communist side of things. A lot of proto-anti-fascist movements had migrated over here in during the Weimar years and many of those actors entangled themselves in FDR’s cabinet (read The Venona Secrets). American Communists were getting bolder in their calls to overthrow the government and that government wasn’t ignoring them.
FDR signed the Smith Act into law on June 28th of that year, about seventeen months before Pearl Harbor. You can read the Act here and the criminal core here.
All that said, what did the Smith Act actually do?
First, it made it a crime to interfere with the loyalty or discipline of the armed forces—urging insubordination, mutiny, or refusal of duty, or circulating printed matter that did the same. (We’ve seen the Democrats do this recently).
Second, and this is the clause the Cold War lived on, it made it unlawful to:
knowingly advocate, advise, or teach the duty, necessity, desirability, or propriety of overthrowing any government in the United States by force or violence, or by assassinating an officer of that government;
print or circulate such matter with intent to cause that overthrow;
organize, or knowingly join, a group that teaches or encourages that overthrow;
conspire to do any of the above.
Third, it required every alien fourteen or older to register, be fingerprinted, and report. Aliens were the specific target for this law for a number of reasons, mainly because they were the source of anti-American agitation and also because they could be deported. The Act ratcheted up the number of deportations for aliens who called for a violent overthrow of the U.S.
In addition to deportation, convicted seditionists could be fined and imprisioned.
It’s significant to consider the ramifications of this Act because it directly criminalized speech, not just action. Guilty parties didn’t have to bomb things (though many did) or seize a government building (they did this too.) You just had to verbally support/advocate for it, and spread your ideas to others.
Since speech was the only action, this Act naturally ran afoul of the First Amendment, and ended up in the courts. The question was: is calling for revolution protected speech?
That would get a lot of play during the Red Alert (I refuse to call it a “scare” because it was a real threat) years of the 1950s, when McCarthy (who wasn’t wrong) sought to remove communists from the government. But the Smith Act predated “McCarthyism” by more than a decade. A lot of people thought it was drafted specifically to target the Communist Party USA, and while they were a big player, the statutes targeted behaviors and not individual groups. The first big trial for Smith Act violations was actually against the Socialist Workers Party in Minnesota, a state that has always sucked and continues to do so. After Trotskyite revolution advocates were locked up, the Act was then applied to the commies.
The First Amendment is a God-given right, and if we’re going to protect it, then protecting it from people who advocate for its destruction seems like an obvious measure to take. (Personally I think it makes sense.) But like I said: this question ended up in the courts, and was eventually whittled down bit by bit.
Dennis v United States
In July 1948 the government indicted eleven top CPUSA leaders, including General Secretary Eugene Dennis. The charge was conspiracy to teach and advocate violent overthrow, and to organize a party for that purpose. The trial in New York ran for months. All eleven were convicted, and a challenge made it all the way to SCOTUS, which sided with the government.
Chief Justice Vinson treated a highly organized group, advocating for government destruction, to be a hazard in the same way that an active group storming a courthouse would be. The conspiracy merited the punishment. Justices Black dissented, saying that if you can jail men for teaching an idea, you have handed the government a tool that will not stay pointed only at Communists.
At the time, the Dennis decision made sense given the immediate threat poised by the organizing collectivist institutions, but Black was also right that soon such a legal instrument would be pointed elsewhere. Legal minds in a republic ought to be careful not to forge a weapon they wouldn’t want pointed at themselves, which at the meta-level is what this case was really debating.
was defensible as an emergency reading of a statute aimed at a conspiratorial party that took its orders, in that era, from a foreign totalitarian state. I also think Black was right that the opinion was written too loosely. A republic that loves the Constitution should want the line drawn at action and incitement to action, not at the mere existence of a hated ideology.
Yates v United States
Six years later the Warren Court heard Yates v. United States, and held that teaching an abstract doctrine was okay but advocacy to action was not. It didn’t strike down the statute or formally overrule Dennis, but it figured out the fine line in what had been a gray area for far too long. You could teach Marxism in a classroom without organizing people to action. (But if you did that second thing, you were in deep doo-doo.) This was the forerunner to a lot of speech laws that we have today as regards violence toward government.
In 1969, the case of Brandenburg v Ohio would strengthen the findings in Yates, clearly stating that speech and advocacy were different in the eyes of the law.
So that’s it. For a while we had a law on the books that made teaching communism illegal, and we used to lock fools up over it. I’m sure we made the right decision. I mean, after all…gestures broadly.
Right guys?
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