Smith Act Criminalizes Advocacy of Government Overthrow, Enables Political Persecution

Congress passes the Alien Registration Act, commonly known as the Smith Act after its sponsor Representative Howard W. Smith of Virginia, on June 28, 1940. The law makes it a criminal offense to “knowingly or willfully 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.” It also criminalizes organizing or joining any group advocating such positions.

Representative Howard Smith, a conservative Democrat from Virginia and staunch opponent of labor unions and the New Deal, designs the legislation ostensibly to target Nazi and fascist subversion. However, the act’s true targets become clear in subsequent years. The law’s first major prosecutions target leaders of the Socialist Workers Party in 1941, not fascists. By the late 1940s and 1950s, the Smith Act becomes the primary legal weapon for prosecuting Communist Party leaders and leftist labor organizers.

The Smith Act requires all non-citizen adult residents to register with the government, providing fingerprints and detailed personal information. Nearly five million aliens register within four months. This registration requirement facilitates subsequent surveillance and deportation proceedings against politically targeted immigrants.

The law’s chilling effect on political speech is profound. The mere possibility of prosecution deters radical political organizing and creates a legal framework for attacking labor unions’ most militant leaders. Combined with the 1947 Taft-Hartley Act’s anti-communist affidavits, the Smith Act helps purge the American labor movement of its leftist leadership, weakening organized labor’s political and economic power.

In Dennis v. United States (1951), the Supreme Court upholds Smith Act convictions of Communist Party leaders. The Court’s decision validates guilt by association and criminalizes political advocacy without evidence of imminent violent action. Only in Yates v. United States (1957) does the Court limit Smith Act prosecutions, distinguishing between abstract advocacy and incitement to action, though by then the damage to civil liberties and the labor left is already done.