Yates v. United States
By declaring that advocacy of future action differed from plans for immediate government overthrow, Yates greatly curtailed the federal government's ability to prosecute subversives.
The Smith Act, also known as the Alien Registration Act, was adopted in 1940. America did not enter World War II until the following year, but the Smith Act was clearly a product of the nation's prewar anxiety. It contained provisions regarding admission, registration, and deportation of aliens living in the United States, but its most important sections concerned subversive activities. The act's conspiracy provisions imposed criminal penalties on anyone who "advocates, abets, advises, or teaches" the violent overthrow of the federal government, publishes subversive literature, organizes a subversive group, joins such a group, or conspires to commit any of these offenses.
The Smith Act was rarely used during the war, but afterward it became the government's primary tool for prosecuting domestic communists as fears of an international communist conspiracy spread. In 1951, the act was used to convict 12 members of the Communist Party's Central Committee. The Supreme Court upheld 11 of these convictions and the act itself in Dennis v. United States (1951). In Dennis, the Court found that leaders of the Communist Party posed a "grave and probable danger" to the government and that their words and deeds were therefore not protected by the First Amendment. The U.S. Department of Justice interpreted Dennis as license to prosecute Communists all around the country.Supreme Court Distinguishes Advocacy of Doctrine from Advocacy of Action
But by the time 11 Communist Party leaders were convicted under the Smith Act in Yates v. United States, the mood of the country had shifted. The liberal Court led by Chief Justice Warren distinguished the situation of the communist leaders in Dennis from that of the current petitioners. While the former had established a seditious group which it maintained in readiness to overthrow the government, the latter were guilty only of advocating a doctrine which might lead to revolution at some undefined point in the future:
In failing to distinguish between advocacy of forcible overthrow as an abstract doctrine and advocacy of action to that end, the District Court appears to have been led astray by the holding in Dennis that advocacy of violent action to be taken at some future time was enough . . . This misconceives the situation confronting the Court Dennis in and what was held there . . . The essence of the Dennis holding was that indoctrination of a group in preparation for future violent action, as well as exhortation to immediate action . . . is not constitutionally protected when the group is of sufficient size and cohesiveness . . . to justify apprehension that action will occur. This is quite a different thing from the view of the District Court here that mere doctrinal justification of forcible overthrow . . . is punishable per se under the Smith Act.
Justices Black and Douglas dissented in part from the majority opinion written by Justice Harlan. Black and Douglas argued that the Smith Act should be declared unconstitutional as a violation of the First Amendment guarantees of free speech and freedom of association. In the end, however, although the Court threw out the convictions of all 11 petitioners in Yates, nine of the cases were sent back for retrial. The Court found that in two cases there was insufficient evidence to convict; in all the others, the Court indicated that clearer jury instructions the second time around would result in fairer trials.
Yates neither overruled Dennis nor held the Smith Act unconstitutional. In effect, however, the Warren Court's reinterpretation of Dennis rendered the conspiracy provisions of the act unenforceable. No further prosecutions were made under these provisions, despite the vitality of the Smith Act.
- Dennis v. United States, 341 U.S. 494 (1951).
- Barenblatt v. United States, 360 U.S. 109 (1959).
- Scales v. United States, 367 U.S. 203 (1961).
Advocating Government Overthrow
Sporadically since its birth, the United States struggled with subversive activity, both real and imagined. During the twentieth century concern about Communism and anarchists, those who advocated violent overthrow of the government, led to racial antagonism including racially-biased legislation and massive government probes into the affairs of aliens and citizens.
The period between 1917 and 1920 is known as the first Red Scare, the word "red" being synonymous with Communism. States enacted sedition laws making it unlawful to advocate violent political change or to be a member of a group that did. Aliens charged with anarchist beliefs were commonly deported. The Justice Department created the Radical Division headed by J. Edgar Hoover, later director of the Federal Bureau of Investigation.
A second Red Scare surfaced in 1938 with the beginning of World War II. Worries about fascism, Nazism, and Communism led to the formation of the House Un-American Activities Committee. Congress, focusing on preventing communist infiltration of the government, passed the Smith Act of 1940 and the Subversive Activities Control (McCarran) Act of 1950. U.S. citizens, unions, and even Hollywood became targets of investigations as Senator Joseph McCarthy led inquiries in the 1950s to identify Communists at the highest levels of U.S. government.
The Red scares largely ceased by the 1960s as Vietnam War controversies began.
West's Encyclopedia of American Law. Minneapolis/St. Paul, MN: West Publishing, 1998.