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10 Law. Guild Rev. 181 (1950)
Is the Smith Act Unconstitutional

handle is hein.journals/guild10 and id is 25 raw text is: IS THE SMITH ACT CONSTITUTIONAL? OSMOND K. FRAENKEL The recent conviction of the eleven leaders of the Communist Party affords a new opportunity for judi- cial scrutiny of the Smith Act.1 Enacted in 1940 as part of the so-called Alien Registration Act, this law is a substantial reenactment of parts of the 1917 Espionage Act2 and of various state criminal syndicalism laws3 passed during the hysteria which followed the Russian revolution. It punishes both advocacy of the overthrow of the government by force and attempts to incite dis- affection in the armed forces. It was first invoked in 1941 in the Dunne case against a group of Socialist Workers Party members, commonly known as Trotzky- ites. Their conviction on an indictment charging viola- tion of both parts of the law was upheld by the Circuit Court of Appeals for the Eighth Circuit. The Supreme Court three times refused to interfere.5 In that case the convicted men urged the courts to hold the Smith Act unconstitutional both on its face and as applied. And it has been suggested6 that since the Supreme Court refused to review the conviction the issue of constitutionality is no longer open. This view proceeds upon a total misconception of the effect of a denial of certiorari by the Supreme Court. As it has itself repeatedly pointed out,7 such a denial in no way implies approval of the decision under attack. A rather recondite subject, this was recently illuminated by Mr. Justice Frankfurter in his opinion explaining the Court's refusal to review the decision of the Maryland Court of Appeals in the so-called radio gag rule case,8 when he said: * * * The sole significance of such denial of a petition for writ of certiorari need not be elucidated to those versed in the Court's procedure. It simply means that fewer than four members of the Court deemed it desirable to review a decision of the lower court as a matter 'of sound judicial discretion.' Rule 38, paragraph 5. A variety of considerations un- derlie denials of the writ, and as to the same peti- tion different reasons may lead different Justices to 1. 18 U.S.C. 2385, 2387, 54 Stat. 670, 671 (1940). 2. 18 U.S.C. 2388, 40 Stat. 219 (1917), 3. As in Alaska, Arizona, California, Hawaii, Idaho, Iowa, Kansas, Kentucky, Michigan, Minnesota, Montana, Nebraska, Nevada, Ohio, Oklahoma, Oregon, Rhode Island, South Dakota, Utah and Washington. New Jersey, New York, Washington and Wisconsin had passed similar laws even earlier, See Chafee, Free Speech in the United States (1941), 575-597. 4. Dunne v. United States, 138 F. (2d) 137 (1943). 5. id. 320 U. S. 790, 814 (1943), 815 (1944). 6. See N. Y. Sun, Dec. 6, 1949, p. 20, 7. House v. Mayo, 324 U. S. 42, 48 (1945) ; Sunal v. Large, 332 U. S. 174, 181 (1947) ; Wade v. Mayo, 334 U. S. 672, 680 (1948). 8. Maryland v. Baltimore Radio Show, 338 U. S. 912, 919 (1950). the same result. This is especially true of petitions for review on writ of certiorari to a State court. Narrowly technical reasons may lead to denials. Review may be sought too late; the judgment of the lower court may not be final; it may not be the judgment of a State court of last resort; the deci- sion may be supportable as a matter of State law, not subject to review by this Court, even though the State court also passed on-issues of federal law. A decision may satisfy all these technical require- ments and yet may commend itself for review to fewer than four members of the Court. Pertinent considerations of judicial policy here come into play. A case 'may 'raise an important question but the record may be cloudy. It, may be desirable to have different aspects of an issue further illumined by the lower courts. Wise adjudication has its own time for ripening. That the basic question remains undetermined by the Supreme Court can hardly be disputed. Indeed, when the bail application .of the Communists was heard in the Court of Appeals the Attorney General's representative admitted as much.' We shall, accordingly, address our- selves to the merits of the question. The arguments are in the main the same as those advanced in the Dunne case, except that the contentions with regard to the ap- plication of the statute must be considered in the light of the different circumstances surrounding the two cases. In the earlier one, the prosecution had conceded that there was no clear and present danger that the govern- ment could be overthrown and the trial judge ruled that this test had no application whatever to a prosecution under the Smith Act. In the later case there was no similar concession by the prosecution, no such blanket ruling by the trial judge. Instead Judge Medina tried his hand at a rewriting of the test. a. The Statute on its Face. The basic constitutional argument is that the Smith Act violates the prohibition of the First Amendment against the passage of any law abridging freedom of speech or of the press. That the Smith Act does abridge these freedoms can hardly be disputed since it bristles with restrictions on the spoken and printed word. If, therefore, the Amendment really means what it seems to, the unconstitutionality of the law follows. It has often been pointed out by the Supreme Court,0 9. N. Y. Times, Nov. 2, 1949, p. 5. 10, See Chaplinshy v. New Hampshire, 315 U. S. 568, 571 (1942) ; Tarminiello v. Chicago, 337 U. S. 1, 4 (1949).

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