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About the Smith Act Trials

Michael Steven Smith

SMITH ACT TRIALS, 1949. The Alien and Registration Act of 1940 was proposed by Congressman Howard Smith of Virginia, a poll tax supporter and a leader of the anti-labor bloc in Congress, and is generally referred to as the Smith Act. Signed into law by President Franklin Roosevelt, it was the first statute since the Alien and Sedition Acts of 1798 to make mere advocacy of ideas a federal crime.

Federal Bureau of Investigation director J. Edgar Hoover, immensely proud of his leading role in the government's nationwide persecution and deportation of radicals and immigrants during the 1919 Palmer Raids, suggested to President Harry Truman in 1948 that the Smith Act be used against the Communist Party and its sympathizers. Truman embraced the idea as a means to outflank Republican rivals who were accusing the Democrats of being "soft" on Communism. Going after domestic Communists also complemented his international policy in subduing "subversion" in Greece, Italy, and France, where Communism was widely popular and Communist parties could conceivably take shared or total control of the national government. The most significant political heresy trial in U.S. history would bring the Cold War home.

The eleven defendants were not charged with any overt acts. The accusation was that "they conspired . . . to organize as the Communist Party and willfully to advocate and teach the principles of Marxism-Leninism," which the government alleged to mean "overthrowing and destroying the government of the United States by force and violence" at some unspecified future time. They were also accused of conspiring to "publish and circulate . . . books, articles, magazines, and newspapers advocating the principles of Marxism-Leninism," again interpreted by the prosecution. The Communist Manifesto by Marx and Engels, Lenin's State and Revolution, and Stalin's Foundation of Leninism were placed into evidence as books from which the defendants taught. Among the eleven charged were Gil Green, a long-time Party leader; Eugene Dennis and Henry Winston, leaders of the national organization; John Gates, editor of the Daily Worker; and Gus Hall, leader of the Party in Ohio. The nine-month trial took place in New York City. Some four hundred police were detailed to the Foley Square courthouse, further feeding an aura of tension and potential violence.

Judge Harold Medina suffused both the pretrial and trial proceedings with consistent prejudicial rulings and quips that were often anti-Communist or racist in nature. At one point, Medina called black defendant Benjamin J. Davis, a Harvard graduate from a distinguished southern family, "boy." The jury was selected in a manner that insured all of its members were at least upper middle class. One showed overt prejudice before the trial even started, but was not dismissed.

The defendants fought the thought-crime nature of the proceedings and the government's caricaturing of their views. They claimed, to no avail, that they were for majority rule and against violence, except as a means of self-defense. Given the climate of hysteria generated by mass media, guilty verdicts for all were more or less foreordained. Ten got and served five years in federal prison and had to pay fines of $10,000. The eleventh defendant, Robert G. Thompson, a bearer of the World War II Distinguished Service Cross for bravery, received his government's gratitude in the form of a slightly shorter sentence of only three years. Four of the defendants forfeited their bail during the appeal process and went underground where they functioned for years before surrendering or being apprehended. While in prison Robert G. Thompson had his skull crushed by a group of Yugoslav fascists armed with a pipe, and Winston, denied essential medical care, was left blinded. Each of the defense attorneys was cited for contempt and served a prison sentence. Among those who served six months was George C. Crockett, an African American attorney who, later in his career, was first elected as a judge in Detroit's criminal court and then as a Michigan congressman.

The successful use of the Smith Act by the Truman administration against the top leaders of the Communist Party drove a large stake into the heart not only of the Party but of every organization in which the Communists had been active and influential. Not least of the indirect casualties was the newly formed Progressive Party. The indictments in the case came on the very eve of the Progressive Party's convention and appear timed to undermine support for the new party. The Communist Party, which was heavily involved with the Progressive movement, had expected the new party to garner between four and eight million votes. The indictments and the charge that the Progressive Party was just a front for Communism was a major factor in the Progressive Party's ultimately receiving just a bit over a million votes.

The convicted Communists appealed their cases, but in 1951 the United States Supreme Court upheld the convictions by a vote of six (including four Truman appointees) to two. Chief Justice Fred Vinson wrote the decision for the majority. Justices Hugo Black and William O. Douglas dissented. Black noted that the government indictment was "a virulent form of prior censorship of speech and press" which is forbidden by the First Amendment and therefore unconstitutional.

Douglas wrote of his belief that the Communist Party was impotent and that "only those held by fear and panic could think otherwise." Therefore, the Party could not possibly represent a "clear and present danger" as required in the law. Douglas made clear the distinction between defending the Party's legal rights and supporting its positions. He pointed to the Party's uncritical support of the government of the Soviet Union and quoted Andrei Vishinsky, the chief prosecutor at the third Moscow purge trial, who had written, "In our state, naturally there could be no place for freedom of speech, press, and so on for the foes of socialism."

An ironic aspect of the convictions, which was not lost among civil libertarians and others, was that the Communist Party had fully supported the use in 1941 of the Smith Act against the leaders of the Socialist Workers Party. Motivated by its hatred of Trotskyist political opponents and its fervent support for the Soviet-American alliance of World War II, the Party had judged the Smith Act perfectly constitutional and the subsequent trials a legitimate government action. Those positions gravely undercut the credibility of the Party's efforts in the 1950s to characterize the Smith Act as unconstitutional and to mobilize a defense on the basis of political free speech and freedom of association.

The criminal convictions of the leadership of the Communist Party deprived it of legitimacy in the eyes of most Americans. Although membership in the Party did not significantly decline, the Party was unable to recruit many new members. More significant was the damage to Party fronts and peripheral organizations. Participation of former sympathizers fell away dramatically. Long-established groups became inactive or dissolved, and the creation of new groups virtually ceased. Among the allied groups whose demise was most damaging was the International Workers Order, an insurance and fraternal order with approximately 150,000 members. Although financially sound and not directly connected to the Communist Party, the International Workers Order was forced to dissolve in 1954 on the basis that it was a subversive organization. In addition to the political loss this entailed for the Party, it also deprived Communists of an institution from which they could borrow to finance their legal defense.

After the Smith Act convictions, Hoover, disappointed that only eleven Communists had been prosecuted, wrote Truman criticizing him as "insincere" for not indicting greater numbers. This failing was soon corrected. In 1951, twenty-three more leaders were indicted, including the legendary Elizabeth Gurley Flynn, who had first burst on the American political scene as an organizer and orator for the Industrial Workers of the World. Flynn, a founding member of the American Civil Liberties Union, had squared off with Hoover in the 1920s when she fought for the victims of the Palmer Raids and the 101 members of the Industrial Workers of the World who were sentenced to prison at a mass trial in Chicago. In 1953, Flynn and her codefendants were fined and imprisoned.

Further indictments followed throughout the nation. In the end over 140 Communist Party leaders were indicted. The trials did not cease until, a number of Supreme Court decisions in 1957. Two of the most important were Yates v. United States and Watkins v. United States. The Yates decision overthrew the convictions of the second tier of Communist leaders. It drew a sharp distinction between the advocacy of an idea for purposes of incitement and the teaching of an idea as an abstract concept. In Watkins the Court ruled that a defendant who had opted not to use the Fifth Amendment could still use the First Amendment against "abuses of the legislative process." The vote was six to one, with Chief Justice Earl Warren writing the majority opinion.

The net effect of these and related decisions was to bring prosecutions to a halt. The Court had reaffirmed constitutional protections regarding free speech and self-incrimination while raising the requirement of "intent" to a level that made it difficult for prosecutors to show a Communist Party member had a criminal purpose. Nonetheless the Smith Act remained and still remains on the books. Moreover, the prosecutions had been very effective in destroying the momentum of the Party and giving it a subversive image with the general public which it has never totally shed.

From Encyclopedia of the American Left. Ed. Mari Jo Buhle, Paul Buhle, and Dan Georgakas. New York: Oxford University Press, 1998. Copyright 1990, 1998 by Mari Jo Buhle, Paul Buhle, and Dan Georgakas.

Retrun to V. J. Jerome