Sedition and Domestic Terrorism

In the late 1920s and the 1930s, there were relatively few governmental efforts to suppress seditious utterances. Moreover, the Supreme Court in this era reversed several convictions for seditious expression, although these decisions did not significantly alter prior doctrine (DeJonge v. Oregon, 299 U.S. 353 (1937); Herndon v. Lowry, 301 U.S. 242 (1937); Fiske v. Kansas, 274 U.S. 380 (1927)).

In 1940, however, Congress enacted the Smith Act, 18 U.S.C. § 2385 (2000), which declared it unlawful for any person to advocate or teach the "duty, necessity, desirability, or propriety of overthrowing" by force or violence the government of the United States or of any state or to organize or knowingly become a member of any society or group "of persons who teach, advocate or encourage the overthrow" of any such government. Violations were punishable by imprisonment of up to twenty years, fines of up to $20,000, or both.

In the first major prosecution under the act, the government in 1948 indicted twelve members of the Central Committee of the Communist Party of the United States for conspiring to violate the act. After a trial lasting eight months, the defendants were convicted. In a confusing set of opinions, a divided Supreme Court upheld the convictions (Dennis v. United States, 341 U.S. 494 (1951)). The plurality opinion in Dennis, written by Chief Justice Fred Vinson, embraced a modified version of the clear-and-present-danger formula, holding that the critical question was whether the gravity of the evil, discounted by its improbability, justified the restriction on expression. Since the evil sought to be avoided—overthrow of government—was especially grave, even a remote danger of its occurrence, Vinson held, was sufficient to sustain the convictions.

After the decision in Dennis, Smith Act prosecutions were instituted against the secondary leadership of the Communist Party. By 1957, the government had secured convictions of ninety-six Communist Party members in addition to the Dennis defendants. In a 1957 decision, however, the Supreme Court retreated sharply from Dennis, holding that the Smith Act prohibited only express incitement to specific unlawful conduct (Yates v. United States, 354 U.S. 298 (1957)). Yates had a decisive effect upon the administration of the act. In all pending cases but one, the indictments were either dismissed by the courts or dropped by the government, and no further prosecutions were brought.