The Status of Freedom of Expression Under the Smith Act

Date01 September 1958
Published date01 September 1958
Subject MatterArticles
State College of Washington
JUNE 28, 1940, President Roosevelt approved a measure entitled
~ ~ the Alien Registration Act of 1940, but which is commonly known
as the Smith Act. Much the most significant part of the statute,
the part to which the designation &dquo;Smith Act&dquo; almost invariably refers, is
Title I, Sections 2 and 3 of which make it unlawful to advocate the over-
throw of any government in the United States by force or violence, to pro-
mote an organization for such a purpose, or to conspire to do either of those
In 1941, Sections 1 and 2 (the first section makes it criminal to sow dis-
sension among the armed forces of the United States) of the Smith Act
were invoked for the successful prosecution of 18 members of the Socialist
Workers party,2 and in 1942 Section 2 was invoked against 28 alleged pro-
Nazis. In the latter case the judge died before the completion of the trial
(it had been in progress for over seven months), and as no retrial was had,
the case was later dismissed for failure to prosecute.3 This constitutes the
full history of prosecutions under the Smith Act prior to 1949, when 11 top
Communists were convicted in the federal district court in New York City
of conspiracy to overthrow the government. After the Supreme Court
sustained the Smith Act and the convictions of Dennis and his associates,4
prosecutions of Communists were instituted literally by the score. A
total of
Sections 2 and 3 of the Act are as follows:
Section 2. (a) It shall be unlawful for any person-
(1) to knowingly or wilfully advocate, abet, advise, or teach the duty, necessity,
desirability, or propriety of overthrowing or destroying any government in the United
States by force or violence, or by the assassination of any officer of such government;
(2) with the intent to cause the overthrow or destruction of any government in
the United States, to print, publish, edit, issue, circulate, sell, distribute, or publicly
display 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;
(3) to organize or help to organize any society, group, or assembly of persons
who teach, advocate, or encourage the overthrow or destruction of any government
in the United States by force or violence; or to be or become a member of, or affili-
ated with, any such society, group, or assembly of persons, knowing the purpose
Section (3). It shall be unlawful for any person to attempt to commit, or to
conspire to commit, any of the acts prohibited by the provisions of this title (54
Stat. 670).
The Smith Act was repealed on September 1, 1948, but was re-enacted with sub-
stantially the same provisions. See Title 18 U.S. Code (1952 ed.) sec. 2385.

Dunne v. U.S., 138 F. 2d 137 (C.A.8, 1943), cert. den. 320 U.S. 790 (1943).

U.S. v. McWilliams, 163 F. 2d 695 (C.A.D.C., 1947).

Dennis v. United States, 341 U.S. 494 (1951).

131 persons were indicted up to May 2, 1956, and of these 98 were con-
victed, 9 were acquitted, and on the others the jury could reach no
On June 17, 1957, the Supreme Court in the case of Yates v. United
State, announced its second major decision under the Smith Act, one
which is commonly thought to have greatly modified the Dennis decision.
Both decisions have their ardent champions and severe critics. The holding
in the Dennis case was warmly approved by those who saw it as a blow at
subversion and a bulwark of national security and it was deplored and de-
nounced by individuals who believed that freedom of expression as guaran-
teed by the First Amendment of the Constitution7 had been jeopardized in
a relatively ineffective effort to strengthen the nation against the threat of
communism. The Yates decision has the praise of most of the ardent cham-
pions of civil liberty and the censure of many persons who find in it an open,
ing through which domestic Communist plotters may escape the just penal-
ties of the law and continue to imperil the security of the United States.
It is the purpose of this paper to analyze these two major decisions in
order to determine the degree to which the Court shifted its ground in the
two cases and to arrive at a conclusion respecting the status of freedom of
expression under the Smith Act.
Since one of the charges in the indictments in both Dennis and Yates was
that the defendants had &dquo;organized&dquo; the Communist party of the United
States and since a statute of limitations bars prosecution after three years, the
date of the organization of the party became important. The Communist
party was first organized in the United States in 1919. But there was a break
in the organization during World War II, for when the United States be-
came an ally of Soviet Russia, the American Communists, finding them-
selves in the awkward position of supporting the war policies of President
Roosevelt’s capitalist government, changed the name of their party, styling
it the Communist Political Association. But the victory over Germany re-
moved the necessity for co-operation with capitalist regimes and inter-
national Communist leaders pressured their followers in America to restore
the purity of their party. Consequently, in July, 1945, the Communist Politi-
cal Association was abandoned and replaced by the Communist party of
the United States.
Milton R. Konvitz, Fundamental Liberties of a Free People (Ithaca: Cornell University
Press, 1957), p. 401 n.
354 U. S. 298.
The relevant part of the First Amendment reads: "Congress shall make no law abridging
the freedom of speech, or of the press; or the right of the people peaceably to as-
semble, and to petition the Government for a redress of grievances."

In July, 1948, a federal grand jury in New York indicted 11 Communist
party officials for having organized the party in 1945 and for having, since
that date, wilfully and knowingly conspired to teach and advocate the aver-
throw of government in the United States by force and violence. The trial of
this celebrated case, before Judge Harold R. Medina, ran from January 20 to
September 23, 1949, and filled a record of 16,000 pages. The jury found all
the defendants guilty, and the convictions were sustained by the court of
appeals in an opinion by Chief Judge Learned Hand.8 On certiorari the
Supreme Court declared the Smith Act valid and sustained the judgments
of the lower courts.9 Five different opinions were written by the justices of
this Court. Chief Justice Vinson wrote an opinion in which he was joined
by three other justices. Justices Frankfurter and Jackson concurred in the
decision, each giving separate reasons, and Justices Black and Douglas wrote
separate dissenting opinions. Justice Clark took no part in the case.
The Chief Justice found no difficulty in discovering the power of Con-
gress to protect existing government from change by violence, revolution,
and terrorism.
Whatever theoretical merit there may be in the argument that there is a &dquo;right&dquo; to
rebellion against dictatorial governments [he wrote], is without force where the...

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