Smith Act - Legislative History

Legislative History

The U.S. government has attempted on several occasions to regulate speech in wartime, beginning with the Alien and Sedition Acts of 1798. During and following World War I, a series of statutes addressed a complex of concerns that included enemy espionage and disruption, anti-war activism, and the radical ideologies of anarchism and Bolshevism, all identified with immigrant communities. Congressional investigations of extremist organizations in 1935 resulted in calls for the renewal of those statutes. The Foreign Agents Registration Act of 1938 addressed a particular concern, but not the general problem. As U.S. involvement in the European war seemed ever more likely, the possibility of betrayal from within gained currency. The Spanish Civil War had given this possibility a name, a "fifth column", and the popular press in the U.S. blamed internal subversion for the fall of France to the Nazis in just six weeks in May and June 1940. Patriotic organizations and the popular press raised alarms and provided examples. In July 1940, Time magazine called fifth column talk a "national phenomenon".

In the late 1930s, several legislative proposals tried to address sedition itself and the underlying concern with the presence of large numbers of non-citizens, including citizens of countries with which the U.S. might soon be at war. An omnibus bill that included several measures died in 1939, but the Senate Judiciary Committee revived it in May 1940. It drew some of its language from statutes recently passed at the state level and combined anti-alien and anti-sedition sections with language crafted specifically to help the government in its attempts to deport Harry Bridges. With little debate, the House of Representatives approved it by a vote of 382 to 4, with 45 not voting, on June 22, 1940, the day the French signed an armistice with Germany. The Senate did not take a recorded vote. It was signed into law by President Franklin D. Roosevelt on June 28, 1940. The Act is referred to by the name of its principal author, for Rep. Howard W. Smith of Virginia, a Democrat and a leader of the anti-labor bloc in Congress.

A few weeks later, the New York Times discussed the context in which the alien registration provisions were included and the Act passed:

The Alien Registration Act was merely one of many laws hastily passed in the first spasm of fear engendered by the success of fifth columns in less fortunate countries. Suddenly the European war seemed almost at our doors, and who could tell what secret agents were already at work in America? So, partly because some such bill would be adopted anyway, and partly because the step, normally distasteful, appeared inevitable, the Administration sponsored the legislation.

Also in June, the President transferred the Immigration and Naturalization Service from the Department of Labor to the Department of Justice (DOJ), demonstrating that the federal government viewed its alien population as a security concern as war grew more likely.

In mid-August, officials of the DOJ held a two-day conference with state officials they called "Law Enforcement Problems of National Defense". Attorney General Jackson and FBI Director Hoover delineated the proper roles for federal and state authorities with respect to seditious activities. They successfully forestalled state regulation of aliens and found state officials receptive to their arguments that states needed to prevent vigilantism and protect aliens, while trusting federal authorities to use the Smith Act to deal with espionage and "fifth column" activities.