Smith Act

• Author: Jeffrey Lehman, Shirelle Phelps

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The Smith Act (54 Stat. 670) of 1940 proscribed, among other things, the advocacy of the forcible or violent overthrow of the government. The act became the analogue of the New York Criminal Anarchy Act sustained in GITLOW V. NEW YORK, 268 U.S. 652, 45 S. Ct. 625, 69 L. Ed. 1138 (1925).

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New York had passed that law in 1902, shortly after the assassination of President WILLIAM MCKINLEY. Between the occupation of Czechoslovakia and the Ribbentrop-Molotov pact of 1939, the House of Representatives drafted the Smith Act because of a fear that there might be a repetition of the anarchist agitation that had occurred in 1900 or the antipathy toward alien radicalism that had surfaced in 1919. Congress was also worried about Nazi or Communist subversion after war broke out in Europe.

Under a 1956 amendment to the Smith Act, if two or more persons conspire to commit any offense described in the statute, each is subject to a maximum fine of $20,000 or a maximum term of imprisonment of twenty years, or both, and is ineligible for employment by the United States or its agencies for five years after conviction. The Smith Act, as enacted in 1940, contained a conspiracy provision, but effective September 1, 1948, the Smith Act was repealed and substantially reenacted as part of the 1948 recodification, minus the conspiracy provision. On June 25, 1948, the Federal general conspiracy statute was passed, effective September 1, 1948, which contained the same provisions as the deleted conspiracy section of the original Smith Act except that the showing of overt acts was required and the maximum penalty became five years' imprisonment instead of ten (18 U.S.C.A. § 2385). The general conspiracy statute became operative, with respect to conspiracies to violate the Smith Act, substantially in the same manner and to the same extent as previously.

The conspiracy provisions of the Smith Act and its provisions defining the substantive offenses have been upheld. An intent to cause the overthrow of the government by force and violence is an essential element of the offenses. The advocacy of peaceful change in U.S. social, economic, or political institutions, irrespective of how fundamental or expansive or drastic such proposals might be, is not forbidden.

A conspiracy can exist even though the activities of the defendants do not culminate in an attempt to overthrow the government by force and violence. A...