Smith Act
The Alien Registration Act, popularly known as the Smith Act, 76th United States Congress, 3rd session, ch. 439,, is a United States federal statute that was enacted on June 28, 1940. It set criminal penalties for advocating the overthrow of the U.S. government by force or violence, and required all foreigners over the age of 14 to register with the federal government.
Approximately 215 people were indicted under the legislation, including alleged communists and socialists. Prosecutions under the Smith Act continued until a series of U.S. Supreme Court decisions in 1957 reversed a number of convictions under the Act as being unconstitutional. The law has been amended several times.
Legislative history
The U.S. government has attempted on several occasions to regulate speech in wartime, beginning with the Alien and Sedition Acts of 1798. During and following World War I, a series of statutes addressed a complex of concerns that included enemy espionage and disruption, anti-war activism, and the radical ideologies of anarchism and Bolshevism, all identified with immigrant communities. Congressional investigations of 'extremist' organizations in 1935 resulted in calls for the renewal of those statutes. The Foreign Agents Registration Act of 1938 addressed a particular concern but not the general problem. As U.S. involvement in World War II seemed ever more likely, the possibility of betrayal from within gained currency. The Spanish Civil War had given this possibility a name, a "fifth column", and the popular press in the U.S. blamed internal subversion for the fall of France to the Nazis in just six weeks in May and June 1940. Patriotic organizations and the popular press raised alarms and provided examples. In July 1940, Time magazine called fifth-column talk a "national phenomenon".In the late 1930s, several legislative proposals tried to address sedition itself and the underlying concern with the presence of large numbers of foreigners, including citizens of countries with which the U.S. might soon be at war. An omnibus bill that included several measures died in 1939, but the Senate Judiciary Committee revived it in May 1940. It drew some of its language from statutes recently passed at the state level, and combined anti-alien and anti-sedition sections with language crafted specifically to help the government in its attempts to deport Australian-born union leader Harry Bridges. With little debate, the House of Representatives approved it by a vote of 382 to 4, with 45 not voting, on June 22, 1940, the day the French signed an armistice with Germany. The Senate did not take a recorded vote. It was signed into law by President Franklin D. Roosevelt on June 28, 1940. The Act is referred to by the name of its principal author, Rep. Howard W. Smith, a leader of the anti-labor bloc in Congress.
A few weeks later, the New York Times discussed the context in which the alien registration provisions were included and the Act passed:
Also in June, the President transferred the Immigration and Naturalization Service from the Department of Labor to the Department of Justice, demonstrating that the federal government viewed its alien population as a security concern as war grew more likely.
In mid-August, officials of the DOJ held a two-day conference with state officials they called "Law Enforcement Problems of National Defense". Attorney General Jackson and FBI Director Hoover delineated the proper roles for federal and state authorities with respect to seditious activities. They successfully forestalled state regulation of aliens and found state officials receptive to their arguments that states needed to prevent vigilantism and protect aliens, while trusting federal authorities to use the Smith Act to deal with espionage and "fifth column" activities.
On October 13, 1941, the 77th United States Congress amended the Smith Act, authorizing a criminal offense for the unlawful reproduction of alien registration receipt cards.
Provisions
Title I. Subversive activities. The Smith Act set federal criminal penalties that included fines or imprisonment for as long as twenty years, and denied all employment by the federal government for five years following a conviction for anyone who:The Smith Act's prohibition of proselytizing on behalf of revolution repeated language found in previous statutes. It went beyond earlier legislation in outlawing action to "organize any society, group, or assembly" that works toward that end and then extended that prohibition to "membership" or "affiliation"—a term it did not define—with such a group.
Title II. Deportation. Because the Supreme Court in Kessler v. Strecker held that the Immigration Act of 1918 allowed the deportation of an alien only if his membership in a group advocating the violent overthrow of the government had not ceased, the Smith Act allowed for the deportation of any alien who "at the time of entering the United States, or... at any time thereafter" was a member of or affiliated with such an organization.
The Smith Act expanded the grounds for deporting aliens to include weapons violations and abetting illegal immigration. It added heroin to the category of drug violations.
Title III. Alien registration. The Smith Act required aliens applying for visas to register and be fingerprinted. Every other alien resident of the United States:
Registration would be under oath and include:
Guardians had to register minors, who had to register in person and be fingerprinted within 30 days of their fourteenth birthday. Post offices were designated as the location for registering and fingerprinting. Aliens were to notify the government if their residence changed, and to confirm their residence every three months. Penalties included fines up to $1000 and up to six months imprisonment.
Alien registration
Registrations began on August 27, 1940, and the newly created Alien Registration Division of the Immigration and Naturalization Service planned to register between three and three and a half million people at 45,000 post offices by December 26, after which those not registered became subject to the Smith Act's penalties. The Division held the view that registration benefited the alien, who "is now safeguarded from bigoted persecution." The alien was to bring a completed form to a post office and be fingerprinted. Registration cards would be delivered by mail and would serve "in the nature of protection of the alien later runs afoul of the police". The details required for registration had been expanded since the passage of the Act to include race, employer's name and address, relatives in the U.S., organization memberships, application for citizenship, and military service record for the U.S. or any other country. Solicitor General Francis Biddle had responsibility for the Division, which was headed by Earl G. Harrison during its first six months. In a radio address meant to reassure aliens, Biddle said: "It was not the intention of Congress to start a witch hunt or a program of persecution." Calling it a "patriotic duty," he said:Government efforts to encourage registration asked citizens to participate:
The number registered passed 4.7 million by January 1941.
After the U.S. declared war in 1941, federal authorities used data gathered from alien registrations to identify citizens of enemy nations and take 2,971 of them into custody by the end of the year. A different set of requirements was imposed during the war on enemy aliens, citizens of nations with which the U.S. was at war, by presidential proclamations of January 14, 1942, without reference to the Smith Act.
In December 1950, following an Immigration and Naturalization Service hearing, Claudia Jones, a citizen of Trinidad, was ordered deported from the U.S. for violating the McCarran Act as an alien who had joined the Communist Party. The evidence of her party membership included information she provided when completing her Alien Registration form on December 24, 1940.
Legal proceedings
Harry Bridges
The Smith Act was written so that federal authorities could deport radical labor organizer Harry Bridges, an immigrant from Australia. Deportation hearings against Bridges in 1939 found he did not qualify for deportation because he was not currently—as the required—a member of or affiliated with an organization that advocated the overthrow of the government. 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. In September, the special examiner who led the hearings recommended deportation, but the Board of Immigration Appeals reversed that order after finding the government's two key witnesses unreliable. 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. Bridges appealed and lost in District Court and the Court of Appeals, 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, a word it interpreted to require more than "sympathy" or "mere cooperation".Minneapolis 1941
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, 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, a New Deal agency. In mid-July, a federal grand jury indicted 29 people, either members of the SWP or Local 544 of the Teamsters union, or both.SWP defendants included James P. Cannon, Carl Skoglund, Farrell Dobbs, Grace Carlson, Harry DeBoer,, 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 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.
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. 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 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. The jury recommended leniency. On December 8, 1941, 12 defendants received 16-month sentences and the remaining 11 received 12-months. Time magazine minimized the danger from the SWP, calling it "a nestful of mice". The American Civil Liberties Union and critics on the left worried that the case created a dangerous precedent.
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". 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.