Smith Act
The Smith Act, enacted in 1940, is a U.S. law that makes it a crime to advocate for the overthrow of the government through force or illegal means. This legislation is rooted in concerns about sedition, reflecting a historical context where political dissent was closely monitored. The first significant legal challenge to the Smith Act involved leaders of the Communist Party of the United States, culminating in a conviction that was upheld by the Supreme Court in the case of Dennis v. United States (1951). However, the Act faced increasing scrutiny regarding its implications for free speech. This culminated in the landmark case of Brandenburg v. Ohio (1969), which established a stricter standard for prosecutions under the Smith Act. The ruling emphasized that for a conviction to occur, the prosecution must demonstrate that the speech not only advocated illegal actions but also posed a clear and present danger of such actions occurring. As a result, the Smith Act has seen a decline in successful prosecutions, particularly for sedition, reflecting a balancing act between maintaining national security and protecting constitutional rights.
Smith Act
Date: 1940
Description: Antisedition law adopted in 1940 to deal with the perceived threats of communism and fascism.
Significance: Smith Act prosecutions were the occasion for many of the Supreme Court’s most important free speech decisions.
The Smith Act criminalizes advocating or teaching the overthrow of the government by force or other illegal or violent means. The crime established is similar to the old common-law crime of sedition. Because the essence of the offense is speaking or publishing alone, prosecutions under the Smith Act always involve free speech issues. The first important case under the act, brought against the top eleven leaders of the Communist Party of the United States, resulted in a conviction upheld by the Supreme Court in Dennis v. United States (1951).
However, the act did not fare well in subsequent decisions because of the Court’s concern for freedom of speech. In Brandenburg v. Ohio (1968), the Court established the rule that no one may be convicted of violating the act unless the government can show that the defendant’s speech or publication explicitly advocated specific illegal acts and that it created a clear and present danger that the acts would take place. This narrow test places a very heavy burden on the prosecution, so heavy that there were no successful federal sedition prosecutions under the Smith Act after Brandenburg.