Smith Act

The Smith Act was written so that federal authorities could deport radical labor organizer Harry Bridges, an immigrant from Australia.[6] Deportation hearings against Bridges in 1939 found he did not qualify for deportation because he was not currently—as the Alien Act of 1918 required—a member of or affiliated with an organization that advocated the overthrow of the government.[22] The Smith Act allowed deportation of an alien who had been "at any time" since arriving in the U.S. a member of, or affiliated with, such an organization. A second round of deportation hearings ended after ten weeks in June 1941.[23] In September, the special examiner who led the hearings recommended deportation, but the Board of Immigration Appeals (BIA) reversed that order after finding the government's two key witnesses unreliable.[24] In May 1942, though the Roosevelt administration was now putting its anti-Communist activities on hold in the interest of furthering the Soviet-American alliance, Attorney General Biddle overruled the BIA and ordered Bridges deported.[25] Bridges appealed and lost in District Court[26] and the Court of Appeals,[27] but the Supreme Court held 5–3 on June 18, 1945, in the case of Bridges v. Wixon that the government had not proven Bridges was "affiliated" with the CPUSA,[28] a word it interpreted to require more than "sympathy" or "mere cooperation".[29]

Albert Goldman, a member of the Socialist Workers Party and defendant in the Minneapolis case, acted as chief defense counsel.

On June 27, 1941, as part of a campaign to end labor militancy in the defense industry, FBI agents raided the Minneapolis and St. Paul offices of the Socialist Workers Party (SWP),[30] a Trotskyist splinter party that controlled Local 544 of the Teamsters union though it had fewer than two thousand members in 30 U.S. cities. The union had grown steadily in the late 1930s, had organized federal relief workers and led a strike against the Works Progress Administration (WPA), a New Deal agency.[31] In mid-July, a federal grand jury indicted 29 people, either members of the SWP or Local 544 of the Teamsters union, or both.[32]

SWP defendants included James P. Cannon, Carl Skoglund, Farrell Dobbs, Grace Carlson, Harry DeBoer, Max Geldman, Albert Goldman, and twelve other party leaders. Goldman acted as the defendants' lawyer during the trial. The SWP had been influential in Minneapolis since the Teamsters Strike of 1934. It advocated strikes and the continuation of labor union militancy during World War II under its Proletarian Military Policy. An SWP member edited the Northwest Organizer, the weekly newspaper of the Minneapolis Teamsters, and the local union remained militant even as the national union grew more conservative. The CPUSA supported the trial and conviction of Trotskyists under the Smith Act. The defendants were accused of having plotted to overthrow the U.S. government in violation of the newly passed Smith Act and of the Sedition Act of 1861, to enforce which, according to Wallace MG as at March 1920, it seems no serious previous attempt had ever been made.[33]

When critics argued that the government should adhere to the doctrine enunciated by Justice Holmes that free speech could only be prosecuted if it presented "a clear and present danger", Attorney General Biddle replied that Congress had considered both that standard and the international situation when writing the Smith Act's proscriptions. At trial, the judge took Biddle's view and refused to instruct the jury in the "clear and present danger" standard as the defendants' attorneys requested.[34] The trial began in Federal District Court in Minneapolis on October 27, 1941. The prosecution presented evidence that the accused had amassed a small arsenal of pistols and rifles and conducted target practices and drills. Some had met with Trotsky in Mexico, and many witnesses testified to their revolutionary rhetoric.

The judge ordered that five of the defendants be acquitted on both counts for lack of evidence. After deliberating for 56 hours, the jury found the other 23 defendants (one had committed suicide during the trial) not guilty of violating the 1861 statute by conspiring to overthrow the government by force. The jury found 18 of the defendants guilty of violating the Smith Act either by distributing written material designed to cause insubordination in the armed forces or by advocating the overthrow of the government by force.[35] The jury recommended leniency.[36] On December 8, 1941, 12 defendants received 16-month sentences and the remaining 11 received 12-months.[37] Time magazine minimized the danger from the SWP, calling it "a nestful of mice". The American Civil Liberties Union (ACLU) and critics on the left worried that the case created a dangerous precedent.[38]

On appeal, a unanimous three-judge panel of the Eighth Circuit Court of Appeals upheld the convictions of the 18. The judges found it unnecessary to consider the "clear and present danger" standard in "situations where the legislative body had outlawed certain utterances".[39] The Supreme Court declined to review the case. Those convicted began to serve their sentences on December 31, 1943. The last of them were released in February 1945. Biddle, in his memoirs published in 1962, regretted having authorized the prosecution.[40]

Early in 1942, President Roosevelt, supported by the rest of his Cabinet, urged Attorney General Biddle to prosecute fascist sympathizers and anti-Semites.[41] Biddle thought the Smith Act was inadequate, but Congress refused to renew the Sedition Act of 1918 as he asked.[42]

In 1942, 16 members of the "Mankind United" semi-religious cult, including founder Arthur Bell, were arrested by the FBI under the act. Although 12 were found guilty, they all won on appeal and none served a jail sentence.

Historian Leo P. Ribuffo coined the term "Brown Scare" to cover the events leading up to the Washington 1944 sedition trial.[43] President Roosevelt, who especially held non-interventionist Charles Lindbergh in disdain, had already asked J. Edgar Hoover of the FBI to investigate pro-Nazi individuals back in 1935. The pro-fascist right in the United States collapsed within a year of the attack on Pearl Harbor in the midst of the investigations.[43]

In March 1942, the government charged George W. Christians, founder of the Crusader White Shirts, with violating the Smith Act by attempting to spread dissent in the armed forces.[44] Life had published a photo of Christians in 1939 under the heading "Some of the Voices of Hate".[45] Christians said he promoted a "human effort monetary system"[46] and supported "a paper and ink revolution for economic liberty". After a four-day trial, he was convicted and sentenced to five years in prison on June 8.[47]

Thirty prominent individuals[48] were indicted in Washington, D.C., in July 1942, accused of violations of the Smith Act,[49] in what became the largest sedition trial in the US.[43] After delays while the government amended the charges and struggled to construct its case, the trial, expanded to 33 defendants, began on April 17, 1944. The defendants were a heterogeneous group that held either isolationist or pro-fascist views. In the case of United States v. McWilliams named after Joe McWilliams, the prosecutor, O. John Rogge, hoped to prove they were Nazi propaganda agents by demonstrating the similarity between their statements and enemy propaganda. The weakness of the government's case, combined with the trial's slow progress in the face of disruption by the defendants, led the press to lose interest.[50] A mistrial was declared on November 29, 1944, following the death of the trial judge, Edward C. Eicher.[51] Among the defendants were: George Sylvester Viereck, Lawrence Dennis, Elizabeth Dilling, William Dudley Pelley, Joe McWilliams, Robert Edward Edmondson, James True, Gerald Winrod, William Griffin, Prescott Freese Dennett, and in absentia Ulrich Fleischhauer.[49] Defendant Lawrence Dennis mocked the affair by subtitling his account of the trial The Great Sedition Trial of 1944.[52]

Only Rogge wanted to retry the case to "stop the spread of racial and religious intolerance."[51] Supreme Court decisions since the 1942 indictments made convictions appear ever more unlikely.[53] Roger Baldwin of the ACLU campaigned against renewing the prosecutions, securing the endorsement of many of the defendants' ideological opponents, including the American Jewish Committee, while the CPUSA held out for prosecuting them all to the limit. Tom Clark, Biddle's replacement as Attorney General in the Truman administration, vacillated about the case. In October 1946, he fired Rogge in a public dispute about publicizing DOJ information about right-wing activities. With the end of World War II, attention turned from the defeated ideologies of the Axis powers to the threat of Communism, and in December 1946 the government had the charges dismissed.[54]

After a ten-month trial at the Foley Square Courthouse in Manhattan, eleven leaders of the Communist Party were convicted under the Smith Act in 1949.[55] Ten defendants received sentences of five years and $10,000 fines. An eleventh defendant, Robert G. Thompson, a distinguished hero of the Second World War, was sentenced to three years in consideration of his military record. The five defense attorneys were cited for contempt of court and given prison sentences. Those convicted appealed the verdicts, and the Supreme Court upheld their convictions in 1951 in Dennis v. United States in a 6–2 decision.

Following that decision, the DOJ prosecuted dozens of cases. In total, by May 1956, another 131 communists were indicted, of whom 98 were convicted, nine acquitted, while juries brought no verdict in the other cases.[56] Other party leaders indicted included Claudia Jones and Elizabeth Gurley Flynn, a founding member of the ACLU who had been expelled in 1940 for being a Communist.

Appeals from other trials reached the Supreme Court with varying results. On June 17, 1957, Yates v. United States held unconstitutional the convictions 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 same day, the Court ruled 6–1 in Watkins v. United States that defendants could use the First Amendment as a defense against "abuses of the legislative process". On June 5, 1961, the Supreme Court upheld by 5–4 the conviction of Junius Scales under the "membership clause" of the Smith Act. Scales began serving a six-year sentence on October 2, 1961. He was released after serving fifteen months when President John F. Kennedy commuted his sentence in 1962.[57]

Trials of "second string" communist leaders also occurred in the 1950s, including that of Maurice Braverman.