knowingly or willfully advocate, abet, advise or teach the duty, necessity, desirability or propriety of overthrowing the Government of the United States or of any State by force or violence, or for anyone to organize any association which teaches, advises or encourages such an overthrow, or for anyone to become a member of or to affiliate with any such association.
It also required all non-citizen adult residents to register with the government; within four months, 4,741,971 aliens had registered under the Act's provisions.
The Act is best known for its use against political organizations and figures, mostly on the left. Prosecutions continued until a series of United States Supreme Court decisions in 1957 threw out numerous convictions under the Smith Act as unconstitutional. The statute remains on the books, however.
On June 27 1941, the SWP's offices in Minneapolis and St. Paul were raided by the FBI which seized large quantities of communist literature. Several weeks later, twenty-eight people, either members of the SWP or Local 544 (or both) were indicted by a federal grand jury with violation of the 1861 Sedition Act, which had never before been used, and the 1940 Smith Act. The defendants were accused of plotting to overthrow the United States government. The trial began in Federal District Court in Minneapolis on October 27 1941 with evidence consisting mostly of public statements made by the SWP and its leaders as well as the Communist Manifesto and writings by Lenin and Trotsky. The evidence regarding insubordination of the armed forces consisted of oral testimony by two government witnesses to the effect that one or two defendants had told them that soldiers should be induced to "kick" (complain) about food and living conditions.
Five of the defendants were acquitted on both counts by direction of the judge due to lack of evidence at the conclusion of the prosecution's case. After 56 hours of deliberation, the jury found all of the twenty-three remaining defendants not guilty of count one of the indictment in which the state charged the accused with violating the 1861 statute by conspiring to overthrow the government by force. The government had attempted to use the Statute, which had originally been aimed against Southern secessionists, as a means of criminalising the avowal of any revolutionary doctrines. The jury found eighteen of the defendants guilty of count two of the indictment, which charged violation of the Smith Act specifically distributing written material designed to cause insubordination in the armed forces and charged that they had acted to "advocate, abet, advise and teach the duty, necessity, desirability and propriety of overthrowing the government by force and violence”.
On December 8 1941, sentences were handed down with twelve defendants receiving 16-month terms and the remaining eleven being given 12 month terms. After failed appeals and the refusal of the United States Supreme Court to review the case, the convicted defendants began to serve their sentences on December 31 1943. The last prisoners were released in February 1945.
The Communist Party supported the trial and conviction of Trotskyists under the Smith Act; however, its leaders were to face similar scrutiny for treasonable acts under the Act following the war. Roosevelt's attorney general, Francis Biddle, later regretted having authorized the prosecution.
The trial began April 17, 1944, after a number of attempts by Federal authorities to frame charges robust enough to survive grand jury hearings, but was characterised by an inability on the part of prosecutors to prove specific intent to overthrow the government. Rather, it appears to have consisted of months of the prosecutor, O. John Rogge, reading the writings of the defendants to an increasingly weary jury. A mistrial was declared on November 29, 1944, some time after the death of the trial judge, ex-congressman Edward C. Eicher.
In part because of the abject failure of the trial, which ended "in tragedy and farce" , it is notable as one of a number in the US in which the dictates of freedom—especially of certain interpretations of freedom of speech—have been set against concepts of national security. The most obvious comparison, from the immediate post-war era, was that of the congressional hearings arising out of Joseph McCarthy's anti-communist allegations.
Eleven leaders of the Communist Party were charged under the Smith Act in 1949. The accusation was that "they conspired . . . to organize as the Communist Party and willfully to advocate and teach the principles of Marxism-Leninism," which was equated with meaning "overthrowing and destroying the government of the United States by force and violence" at some unspecified future time. They were also accused of conspiring to "publish and circulate . . . books, articles, magazines, and newspapers advocating the principles of Marxism-Leninism." The Communist Manifesto by Marx and Engels, Lenin's State and Revolution, and Stalin's Foundation of Leninism were introduced as evidence for the prosecution.
The trial at New York City's Foley Square courthouse took nine months to conduct. Among the eleven charged were Gil Green, a long-time Party leader; Eugene Dennis and Henry Winston, leaders of the national organization; John Gates, editor of the Daily Worker; and Gus Hall, then leader of the Party in Ohio. Ten defendants were given sentences of five years and fined $10,000; an eleventh defendant, Robert G. Thompson, was sentenced to three years. All of the defense attorneys (including future Congressman George W. Crockett) were cited for contempt of court and given prison sentences.
The convicted Communists appealed the verdicts, but the Supreme Court upheld their convictions in 1951 by a vote of six to two with Justices Hugo Black and William O. Douglas dissenting. Black wrote that the government's indictment was "a virulent form of prior censorship of speech and press" and a violation of the First Amendment.
In 1951, twenty-three other leaders of the party were indicted including Elizabeth Gurley Flynn, a founding member of the American Civil Liberties Union. By 1957, over 140 leaders and members of the Communist Party had been charged. The indictments and trials ended in 1957 as the result of a series of Supreme Court decisions. Yates v. United States ruled unconstitutional the conviction of numerous party leaders in a ruling that distinguished between advocacy of an idea for incitement and the teaching of an idea as a concept. The Court ruled by a margin of six to one in Watkins v. United States that defendants could use the First Amendment as a defense against "abuses of the legislative process."
While prosecutions under the Smith Act ceased, the statute remains on the books.
On June 5, 1961, the U.S. Supreme Court upheld by 5-4 the conviction of Junius Scales under the "membership clause" of the Smith Act. Scales, who was indicted in North Carolina in 1954, began serving a six-year sentence October 2, 1961, following the June Supreme Court decision. Ironically, Scales had broken with the U.S. Communist Party in 1956.