The Alien Registration Act of 1940

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The Alien Registration Act of 1940 started out as a measure to ensure the registration of aliens in the United States at a time when the country was nearing war with Germany and Japan. The law, more commonly known as the Smith Act after one of its chief architects, Representative Howard Smith of Virginia, contained a controversial so-called “advocacy section,” which included criminal penalties for anyone who, in words or thoughts, advocated the overthrow of the federal government.

1 A Pretext

The last time a law like this was on the books in peacetime was the Alien and Sedition Act, passed in the late 18th century by Federalist lawmakers under President John Adams; Adams used the law to jail political opponents, and even fine a New Jersey tavern patron who made an unkind remark about Adams’s posterior. The Sedition Act was allowed to expire under the widespread belief that it was unconstitutional. While the Smith Act purported to be on the books simply to register foreign nationals, it’s real purpose was to bring charges against anyone, alien or citizen, who advocated for Hitler’s Germany. As time went on, however, it became clear that the Communist Party in the U.S. was the main target of the FBI and the U.S. government who used the Smith Act as a convenient pretext for prosecution.

2 Prosecutions Begin

The Smith Act had a dampening effect on free speech and several major and well-publicized trials took place. In 1941, 29 people in Minneapolis were indicted on Smith Act charges. These men were members of a local union who also belonged to the Socialist Worker’s Party. Deemed a threat to the United States -- despite the fact that the only incriminating evidence against them was Trotskyite literature -- 18 were sentenced to jail terms for violation of the Smith Act.

3 Mass Trials

As the World War II ended and the Cold War began, FBI Director J. Edgar Hoover urged that prosecutions against American Communists under the Smith Act be kicked into high gear. One of the most well-publicized was the 1948 arrest of the “New York Eleven,” as they became known. These men were indicted because they were leaders of the United States Communist Party. In a trial which stretched from January to October of 1949, all defendants were found guilty and sentenced to fines up to $10,000 and terms of up to five years in prison.

4 Surpreme Court Appeals

The ACLU appealed these convictions, but in 1951, the Supreme Court held the law to be constitutional. One-hundred-forty more Communist Party leaders were indicted and trials continued. However, federal prosecutors stopped using the “advocacy section” of the law concerning sedition in 1957 after a series of Supreme Court decisions reversed the convictions of defendants tried under it. The Alien Registration Act of 1940 remains on the books, although it has fallen into disuse.

Based in New Jersey, Joseph Cummins has been a freelance writer since 2002. He has written 17 books covering history, politics and culture. He has a Master of Fine Arts in writing from Columbia University. His work has been featured in "The New York Times" Freakonomics blog, "Politico," "New York Archives" magazine, "The Carolina Quarterly," "The Michigan Quarterly" and elsewhere.