Alien Registration Act

The Alien Registration Act (also known as the Smith Act) was passed by Congress on 29th June, 1940, made it illegal for anyone in the United States to advocate, abet, or teach the desirability of overthrowing the government. The law also required all alien residents in the United States over 14 years of age to file a comprehensive statement of their personal and occupational status and a record of their political beliefs. Within four months a total of 4,741,971 aliens had been registered. The main objective of the act was to undermine the American Communist Party and other left-wing political groups in the United States. One of the first men to be arrested and imprisoned under the act was James Cannon, the national secretary of the Socialist Workers Party.

After the Second World War it was now decided to use the Alien Registration Act against the American Communist Party. On the morning of 20th July, 1948, Eugene Dennis, the general secretary of the American Communist Party, and eleven other party leaders, included William Z. Foster, Benjamin Davis, John Gates, Robert G. Thompson, Gus Hall, Benjamin Davis, Henry M. Winston, and Gil Green were arrested and charged under the Alien Registration Act. This law, passed by Congress in 1940, made it illegal for anyone in the United States "to advocate, abet, or teach the desirability of overthrowing the government".

The trial began on 17th January, 1949. As John Gates pointed out: "There were eleven defendants, the twelfth, Foster, having been severed from the case because of his serious, chronic heart ailment." The men were defended by George W. Crockett.

It was difficult for the prosecution to prove that the eleven men had broken the Alien Registration Act, as none of the defendants had ever openly called for violence or had been involved in accumulating weapons for a proposed revolution. The prosecution therefore relied on passages from the work of Karl Marx and other revolution figures from the past.

When John Gates refused to answer a question implicating other people, he was sentenced by Judge Harold Medina to 30 days in jail. When Henry M. Winston and Gus Hall protested, they were also sent to prison.

The prosecution also used the testimony of former members of the American Communist Party to help show that Dennis and his fellow comrades had privately advocated the overthrow of the government. The most important witness against the leaders of the party was Louis Budenz, the former managing editor of the party's newspaper, The Daily Worker.

Another strategy of the prosecution was to ask the defendants questions about other party members. Unwilling to provide information on fellow comrades, they were put in prison and charged with contempt of court. The trial dragged on for eleven months and eventually, the judge, Harold Medina, who made no attempt to disguise his own feelings about the defendants, sent the party's lawyers to prison for contempt of court.

After a nine month trial the leaders of the American Communist Party were found guilty of violating the Alien Registration Act and sentenced to five years in prison and a $10,000 fine. Robert G. Thompson, because of his war record, received only three years. They appealed to the Supreme Court but on 4th June, 1951, the judges ruled, 6-2, that the conviction was legal.

Justice Felix Frankfurter argued: The particular circumstances of this case compel me to conclude that the trial judge should not have combined in himself the functions of accuser and judge. For his accusations were not impersonal. They concerned matters in which he personally was deeply engaged... No judge should sit in a case in which he is personally involved... At frequent intervals in the course of the trial his comments plainly reveal personal feelings against the lawyers.... Truth compels the observation, painful as it is to make it, that the fifteen volumes of oral testimony in the principal trial record numerous episodes involving the judge and defense counsel that are more suggestive of an undisciplined debating society than of the hush and solemnity of a court of justice. Too often counsel were encouraged to vie with the court in dialectic, in repartee and banter, in talk so copious as inevitably to arrest the momentum of the trial and to weaken the restraints of respect that a judge should engender in lawyers... Throughout the proceedings... he failed to exercise the moral authority of a court possessed of a great tradition.

Justice William Douglas agreed: "I agree with Mr. Justice Frankfurter that one who reads the record will have difficulty in determining whether members of the bar conspired to drive a judge from the bench or whether the judge used the authority of the bench fo whipsaw the lawyers, to taunt and tempt them, and to create for himself the role of the persecuted. I have reluctantly concluded that neither is blameless, that there is fault on each side, that we have here the spectacle of the bench and the bar using the courtroom for an unseemly discussion and of ill will and hot tempers."

This decision was followed by the arrests of 46 more communists during the summer of 1951. This included Elizabeth Gurley Flynn, who was also convicted for contempt of court after telling the judge that she would not identify people as Communists as she was unwilling "do degrade or debase myself by becoming an informer". She was also found guilty of violating the Alien Registration Act and sentenced to two years in prison.

Miriam Moskowitz, also a member of the Communist Party of the United States, was at the Women's House of Detention when Elizabeth Gurley Flynn and Marion Bachrach were brought in. "They were lodged on my floor but in a different corridor so I did not see them until the afternoon recreation hour. I found them sitting on the roof and I introduced myself. Marian gasped. 'You're still here!' She took my hand and greeted me warmly. Gurley Flynn sat frozen, barely returning my greeting, and I was vaguely uncomfortable that she was signaling me that it was not a good idea for us to be seen hobnobbing together (spy and Communist fraternizing?). I disregarded her signals; for me it would have been a waste of a golden moment for companionship, no matter how ephemeral."

In her autobiography, Phantom Spies, Phantom Justice (2010), she recalled: "Marian and I talked animatedly; I described the absurd customs and conventions characteristic of life in jail which she would need to be sensitive to, and I also told her I was awaiting a decision on my appeal. It was so good to talk naturally and freely with someone who shared my universe!... When we returned to the floor Marian wished me well and embraced me. Gurley Flynn barely nodded good-bye."

As John Gates pointed out in his book, The Story of an American Communist (1959): "To many in the leadership, this meant that the United States was unquestionably on the threshold of fascism. Had not Hitler's first step been to outlaw the Communist Party? We saw an almost exact parallel."

Primary Sources

(1) John Gates, The Story of an American Communist (1959)

Judge Medina not only bore a marked resemblance to actor Adolphe Menjou; like Menjou, he was a consummate actor. From the outset he assumed the star role in the proceedings. Evidently believing that the prosecution could not produce any evidence to back up the charge on which we were indicted, he proceeded to prosecute us on a charge which he dreamed up himself: we and our lawyers were supposed to be conspiring to obstruct justice by dragging out the trial-a charge which the U.S. Supreme Court rejected.

Although our case was a hopeless one under the circumstances, the defendants made every mistake in the book. We permitted the trial to become a duel between judge and defense; it is difficult enough to get a federal jury to vote against the government prosecutor, it will never vote against the judge. Medina baited and provoked our lawyers and they fell into the trap. With the press solidly behind the judge and against us, no matter what we did was reported in a bad light, and our defense tactics often made a bad situation worse.

(2) Statement issued by Eugene Dennis ( March 21, 1949)

We eleven defendants will prove that the very time when we allegedly began this menacing conspiracy we were in fact advocating and organizing all-out support to the Government of the United States. We will prove that all of us taught the duty of upholding the United States Government and of intensifying the anti-Axis war effort and we defendants will put in evidence the honorable war record of the 15,000 American Communists who, in accord with what we taught and advocated, served with the armed forces in the military defense of our country.

We will show with what peaceful intent we taught and advocated, amongst other things, to oppose American support to the unjust and criminal war against the Chinese people waged by the miserable Chiang Kai-shek, to oppose the civil war against the Greeks, waged by the monarchist-fascist puppet of the American masters, with the American people footing the bill, to oppose the Anglo-American oil lords against the new State of Israel, and the people of Indonesia, and to oppose the restoration of the German and Japanese monopolies and war potential under the new management of the American cartelists.

You will see that our Communist Party Constitution acknowledges not only that we learn from Marx and Lenin but that we owe much to and learn from the teachings of men like Thomas Jefferson, Abraham Lincoln, Frederick Douglass, William Sylvis, and Eugene V. Debs.

The prosecution asks this jury for what amounts to a preventative conviction, in order that we Communist leaders may be put under what the Nazis called protective custody. I ask the jury to weigh the prosecution's case against the proof we defendants will offer to establish that we have taught and advocated the duty and necessity to prevent the force and violence of Fascism, imperialists of war and Iynching and anti-Semitism. I ask you to weigh carefully our sincere offer of proof which demonstrates that we Communists are second to none in our devotion to our people and to our country, and that we teach and advocate and practice a program of peace, of democracy, equality, economic security, and social progress.

(3) Louis Budenz, testimony at the trial of Eugene Dennis and the leaders of the American Communist Party (March 29, 1949)

The Communist Party bases itself upon so-called scientific socialism, the theory and practice of so-called scientific socialism as appears in the writings of Marx, Engels, Lenin, and Stalin, therefore as interpreted by Lenin and Stalin who have specifically interpreted scientific socialism to mean that socialism can only be attained by the violent shattering of the capitalist state, and the setting up of a dictatorship of the proletariat by force and violence in place of that state. In the United States this would mean that the Communist Party of the United States is basically committed to the overthrow of the Government of the United States as set up by the Constitution of the United States.

(4) Howard Zinn, A People's History of the United States (1980)

In 1940, with the United States not yet at war, Congress passed the Smith Act. This took Espionage Act prohibitions against talk or writing that would lead to refusal of duty in the armed forces and applied them to peacetime. The Smith Act also made it a crime to advocate the overthrow of the government by force and violence, or to join any group that advocated this, or to publish anything with such ideas. In Minneapolis in 1943, eighteen members of the Socialist Workers party were convicted for belonging to a party whose ideas, expressed in its Declaration of Principles, and in the Communist Manifesto, were said to violate the Smith Act. They were sentenced to prison terms, and the Supreme Court refused to review their case.

(5) Justice Felix Frankfurter on the Alien Registration Act case (4th June, 1951)

The particular circumstances of this case compel me to conclude that the trial judge should not have combined in himself the functions of accuser and judge. For his accusations were not impersonal. They concerned matters in which he personally was deeply engaged... No judge should sit in a case in which he is personally involved... At frequent intervals in the course of the trial his comments plainly reveal personal feelings against the lawyers.... Truth compels the observation, painful as it is to make it, that the fifteen volumes of oral testimony in the principal trial record numerous episodes involving the judge and defense counsel that are more suggestive of an undisciplined debating society than of the hush and solemnity of a court of justice. Too often counsel were encouraged to vie with the court in dialectic, in repartee and banter, in talk so copious as inevitably to arrest the momentum of the trial and to weaken the restraints of respect that a judge should engender in lawyers... Throughout the proceedings... he failed to exercise the moral authority of a court possessed of a great tradition.

(6) Justice William Douglas on the Alien Registration Act case (4th June, 1951)

I agree with Mr. Justice Frankfurter that one who reads the record will have difficulty in determining whether members of the bar conspired to drive a judge from the bench or whether the judge used the authority of the bench fo whipsaw the lawyers, to taunt and tempt them, and to create for himself the role of the persecuted. I have reluctantly concluded that neither is blameless, that there is fault on each side, that we have here the spectacle of the bench and the bar using the courtroom for an unseemly discussion and of ill will and hot tempers.