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The Smith Act (54 Stat. 670) of 1940 proscribed, among other things, the advocacy of the forcible or violent overthrow of the government. The act became the analogue of the New York Criminal Anarchy Act sustained in gitlow v. new york, 268 U.S. 652, 45 S. Ct. 625, 69 L. Ed. 1138 (1925). New York had passed that law in 1902, shortly after the assassination of President William McKinley. Between the occupation of Czechoslovakia and the Ribbentrop-Molotov pact of 1939, the House of Representatives drafted the Smith Act because of a fear that there might be a repetition of the anarchist agitation that had occurred in 1900 or the antipathy toward alien radicalism that had surfaced in 1919. Congress was also worried about Nazi or Communist subversion after war broke out in Europe.
Under a 1956 amendment to the Smith Act, if two or more persons conspire to commit any offense described in the statute, each is subject to a maximum fine of $20,000 or a maximum term of imprisonment of twenty years, or both, and is ineligible for employment by the United States or its agencies for five years after conviction. The Smith Act, as enacted in 1940, contained a conspiracy provision, but effective September 1, 1948, the Smith Act was repealed and substantially reenacted as part of the 1948 recodification, minus the conspiracy provision. On June 25, 1948, the Federal general conspiracy statute was passed, effective September 1, 1948, which contained the same provisions as the deleted conspiracy section of the original Smith Act except that the showing of overt acts was required and the maximum penalty became five years' imprisonment instead of ten (18 U.S.C.A. § 2385). The general conspiracy statute became operative, with respect to conspiracies to violate the Smith Act, substantially in the same manner and to the same extent as previously.
The conspiracy provisions of the Smith Act and its provisions defining the substantive offenses have been upheld. An intent to cause the overthrow of the government by force and violence is an essential element of the offenses. The advocacy of peaceful change in U.S. social, economic, or political institutions, irrespective of how fundamental or expansive or drastic such proposals might be, is not forbidden.
A conspiracy can exist even though the activities of the defendants do not culminate in an attempt to overthrow the government by force and violence. A conspiracy to advocate overthrow of the government by force or violence, as distinguished from the advocacy itself, can be constitutionally restrained even though it consists of mere preparation because the existence of the conspiracy creates the peril.
An agreement to advocate forcible overthrow of the government is not an unlawful conspiracy under the Smith Act if the agreement does not call for advocacy of action; the act covers only advocacy of action for the overthrow of the government by force and violence rather than advocacy or teaching of theoretical concepts. Those to whom the advocacy is directed must be urged to do something, immediately or in the future, rather than merely to believe in a doctrine. A Smith Act conspiracy requires an agreement to teach people to engage in tangible action toward the violent overthrow of the existing government as soon as possible.
An individual defendant cannot be convicted of willful adherence to a Smith Act conspiracy unless something said by the defendant or communicated to another person manifests her understanding that, beyond supporting the idea and objective of violent overthrow of the existing government, particular action to that end is to be advocated. Advocacy of immediate action is not necessary; advocacy of action at a crucial time in the future when the time for action would seem ripe and success would seem achievable is sufficient. There must be a plan to use language reasonably calculated to incite the audience to employ violence against the government. The use of lawful speech, an agreement to share abstract revolutionary doctrine, and an agreement to use force against the government in the future do not constitute a conspiracy to use illegal language. Cooperative action on the part of a number of persons comprising a political party having as its goal the overthrow of the government by force and violence violates the conspiracy provision.
The "membership clause" of the Smith Act has also been the subject of controversy. Although the Smith Act does not proscribe mere membership in an organization that advocates the forcible overthrow of the government as a theoretical matter, it does cover active members who, with a culpable knowledge and intent, engage in significant action to achieve this objective or commit themselves to undertake such action. Present advocacy of future action for violent overthrow violates the Smith Act, but an expression of sympathy with the purported illegal conduct is not within the ambit of the statute. Guilt cannot be imputed to a person solely on the basis of his associations.
Cohan, John Alan. 2003. "Seditious Conspiracy, the Smith Act, and Prosecution for Religious Speech Advocating the Violent Overthrow of Government." St. John's Journal of Legal Commentary 17 (winter-spring).