Smith Act Summary

  • Last updated on November 11, 2022

Antisedition law adopted in 1940 to deal with the perceived threats of communism and fascism.

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 CommunistCommunism Party of the United States, resulted in a conviction upheld by the Supreme Court in Dennis v. United States[case]Dennis v. United States[Dennis v. United States] (1951).Sedition

However, the act did not fare well in subsequent decisions because of the Court’s concern for freedom of speech. In Brandenburg v. Ohio[case]Brandenburg v. Ohio[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 dangerClear and present danger test 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.

Bad tendency test

Brandenburg v. Ohio

Cold War

Dennis v. United States

Espionage acts

Scales v. United States

Schenck v. United States

Seditious libel

Speech and press, freedom of

Subversion

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