• Last updated on November 11, 2022

The Supreme Court seriously undermined the anticommunist Smith Act (1940) by holding that mere membership in an alleged subversive group is not enough to show intent to commit conspiracy.

Freedom of association is often called into question by indictments for conspiracy because it is alleged that some associations are conspiracies to use violence to overthrow the U.S. government. After the South attempted to secede from the Union in the Civil War, it has been illegal to attempt the violent overthrow of the U.S. government, and various Supreme Court decisions have held some associations are conspiracies that may be restrained as clear and present dangers to the nation. This phrase came from an attempt on the part of Justices Oliver Wendell Holmes and Louis D. Brandeis to define a test for balancing liberty against order. They intended the clear and present danger testClear and present danger test to be valid only if used with all the safeguards they set out.Smith ActAssembly and association, freedom of;Noto v. United States[Noto v. United States]Smith Act

Until the 1960’s, the Court faced great difficulty defining “clear and present danger” and often employed a test that viewed the seriousness of the danger discounted by its improbability or used the bad tendency test. Justices Hugo L. Black and William O. Douglas expressed their conclusion in a series of dissents that the clear and present danger test violated the First Amendment and only an absolute standard should be used. In Noto, the Court took an important step in the direction of the Black-Douglas position when it held that Communist Party membership was not in itself evidence of conspiracy to overthrow the government. This made it more difficult for the government to harass the CommunistCommunism Party under the provisions of the 1940 Smith Act.

Albertson v. Subversive Activities Control Board

Assembly and association, freedom of

Bad tendency test

Clear and present danger test

Communist Party v. Subversive Activities Control Board

Dennis v. United States

McCarran Act

Scales v. United States

Smith Act

Yates v. United States

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