It’s clear that a number of those who directed participants in the Stop The Steal rally toward Congress on Jan. 6 did so with full knowledge that this group included white nationalist militias. That didn’t stop either Trump from driving those forces toward Congress with threats that failure to march would amount to the end of the nation. It didn’t stop Rep. Mo Brooks from telling the crowd that “Today is the day American patriots start taking down names and kicking ass,” and cheering for the crowd to go after Congress, saying, “we American patriots are going to come right at them.” It didn’t stop Donald Trump, Jr. from telling the crowd, “You have an opportunity today: You can be a hero, or you can be a zero. And the choice is yours but we are all watching.” And it didn’t stop Rudy Giuliani from telling the assembled militia members, “If we’re wrong, we will be made fools of. But if we’re right, a lot of them will go to jail. So, let’s have trial by combat.”
Though Donald Trump was impeached, actions against him or others on that day, either civil or criminal, can be expected to fail because of very tight restrictions that the Supreme Court has erected around calls to violence. Going back decades, the Court has insisted that the First Amendment protects calls to violence unless than are “clear and present,” which is generally read as specific and immediate. So Trump could rail against Congress and even demand that they be harmed, but unless he got down to the level of something like “march down there this moment and hang Nancy Pelosi,” those words would not be criminal. Mo Brooks should be especially glad for these rulings, because even under this standard, his speech on jan. 6 may have crossed the line.
But in 1941, the government prosecuted 29 men under the Smith Act, with a specific claim that the legislation was passed by Congress with the absolute intent of superseding the need to prove clear and present danger. A district court upheld those convictions on appeal.
In that case, the Smith Act was used to prosecute members of the Socialist Workers Party who were connected to the Teamsters union. They were convicted not because they were immigrants, but because another part of the Smith Act sets out a definition of “subversive activities.” That includes anyone who “prints, publishes, edits, issues, circulates, sells, distributes, or publicly displays” information intended to promote the overthrow of the government, as well as anyone who “organizes or helps or attempts to organize any society, group, or assembly of persons who teach, advocate, or encourage the overthrow or destruction of any such government by force or violence.”
What generated the conviction of the Teamsters in 1941 was evidence that they published a newspaper promoting labor action against military contractors. Notably, the government also charged that the members of the group had collected “a small arsenal of pistols and rifles,” and that they conducted military-style drills—a description that makes them sound very much like a militia.
During the war, the Smith Act was used to prosecute individuals and groups that included some genuine Nazi sympathizers, fascists, and white supremacists including George W. Christians and his Crusader White Shirts. But following the war, it was used primarily as a means of deporting immigrants suspected of communist leanings, In another another connection to current headlines, it was also used to prosecute people who taught about communism, as well as those who advocated it. Some of those convicted under the Smith Act took their case to the Supreme Court, which upheld their convictions. That included the 1949 case Dennis vs. the United States, in which 11 members of the Communist Party USA were convicted of “advocating the violent overthrow of the US government.”
The amazing thing about this case is that the charges against the men were made not because of anything they actually said, did, or published, but on the grounds that communist philosophy called for the violent overthrow of governments in general. The prosecution actually entered The Communist Manifesto into evidence, along with a collection of pamphlets and articles not written by any of those charged. “The prosecution argued that the texts advocated violent revolution, and that by adopting the texts as their political foundation, the defendants were also personally guilty of advocating violent overthrow of the government.”
If that sounds amazing, not only did the men get five years in jail, they lost 6-2 in the Supreme Court. Writing in dissent, Justice Hugo Black made it clear that “These petitioners were not charged with an attempt to overthrow the Government. They were not charged with overt acts of any kind designed to overthrow the Government. They were not even charged with saying anything or writing anything designed to overthrow the Government.”
But still they were convicted.
The Smith Act is still law. It’s been abused in the past to prosecute—and persecute—both immigrants and labor union organizers. It’s been used to jail those who supported communism, just for supporting the idea of communism.
But if openly advocating for the violent overthrow of the rightful government is a violation of the Smith Act, let’s see some charges. If stockpiling guns and conducting mock military exercises is evidence of sedition, there are some good candidates. And if promoting ideas that are counter to democracy can get someone jailed … well, we’re going to need more cells.