The United States enacted its major anti-communist laws between 1940 and 1954: the Smith Act of 1940, the McCarran Internal Security Act of 1950, and the Communist Control Act of 1954, alongside executive-branch loyalty programs and state loyalty oaths. Supreme Court rulings between 1957 and 1969 stripped most of these measures of practical force, but immigration and naturalization bars on Communist Party membership, security clearance disclosure requirements, and the Smith Act itself remain on the books today.
The Smith Act of 1940
The Alien Registration Act of 1940, known as the Smith Act, was the first peacetime federal law since the Sedition Act of 1798 to criminalize political speech. It made it a crime to advocate the violent overthrow of the U.S. government, distribute material promoting that goal, or organize or join a group with that aim.1GovTrack.us. Alien Registration Act, 1940 The original penalty was up to ten years in prison and a $10,000 fine. Congress later raised the maximum to twenty years, and a conviction bars the person from federal employment for five years.2Office of the Law Revision Counsel. 18 USC 2385 Advocating Overthrow of Government
The Supreme Court upheld the Act’s use in Dennis v. United States (1951), affirming the convictions of eleven Communist Party leaders under a “gravity of the evil” test that allowed speech restrictions without evidence of an imminent attempt. A wave of prosecutions followed. Six years later, Yates v. United States (1957) reversed a similar batch of convictions and held that advocating an abstract belief in revolution was protected, while advocating concrete action to overthrow the government was not. Successful Smith Act prosecutions became nearly impossible, and the Justice Department stopped bringing new cases. The statute stands today at 18 U.S.C. § 2385, but no one has been convicted under it in decades.2Office of the Law Revision Counsel. 18 USC 2385 Advocating Overthrow of Government
The McCarran Internal Security Act of 1950
Congress passed the Internal Security Act of 1950, the McCarran Act, over President Truman’s veto four months into the Korean War. Truman called it government-run thought control. The law created the Subversive Activities Control Board, which could order organizations classified as “communist-action” or “communist-front” groups to register with the Justice Department and turn over membership lists, financial records, and details of their activities.3The American Presidency Project. Veto of the Internal Security Bill
Failure to register was heavily punished. Each day of non-compliance was a separate offense carrying up to five years in prison and a $10,000 fine. The law also authorized the president to detain suspected spies and saboteurs during a declared emergency, and it barred members of registered organizations from obtaining passports or working in defense facilities.
The registration requirement collapsed in 1965. In Albertson v. Subversive Activities Control Board, the Supreme Court held that forcing Communist Party members to register violated the Fifth Amendment right against self-incrimination, because party membership was itself a basis for prosecution under other statutes. The Subversive Activities Control Board was abolished by President Nixon in 1973, and Congress formally repealed the registration provisions in 1993.4Office of the Law Revision Counsel. 50 USC Ch 23 Internal Security
The Communist Control Act of 1954
The Communist Control Act stripped the Communist Party of the United States of all legal rights and privileges, declaring that the party was “not entitled to any of the rights, privileges, and immunities attendant upon legal bodies” under American law.5Congress.gov. Public Law 637 Communist Control Act of 1954 Knowingly joining or remaining a member exposed a person to all penalties of the Internal Security Act.
The law also reached labor unions. If the Subversive Activities Control Board found a union communist-infiltrated, the union lost its right to represent employees under the National Labor Relations Act, could not file unfair labor practice charges, and was stripped of every procedural benefit the law normally provides organized labor.5Congress.gov. Public Law 637 Communist Control Act of 1954 The Communist Control Act was rarely enforced and has never been formally repealed, though its practical force dissolved with the registration machinery it depended on.
Federal Loyalty Programs and State Oaths
Loyalty screening moved through executive order rather than legislation. President Truman’s Executive Order 9835, issued in 1947, required background investigations of every person entering federal civilian employment and authorized reviews of existing employees through Loyalty Review Boards. An employee found to have questionable political leanings could be dismissed without the procedural protections normally available to civil servants.6The American Presidency Project. Executive Order 9835 Prescribing Procedures for the Administration of an Employees Loyalty Program
President Eisenhower replaced that framework in 1953 with Executive Order 10450, which required every agency head to ensure that keeping any employee was “clearly consistent with the interests of the national security.” The criteria expanded beyond political associations to include criminal conduct, substance abuse, financial irresponsibility, and anything else suggesting an employee might be unreliable or vulnerable to coercion.7National Archives. Executive Order 10450
States built parallel systems. California’s Levering Act and similar statutes elsewhere required public employees to sign oaths swearing they did not belong to any organization advocating the government’s overthrow. Teachers and university faculty were frequent targets. Refusing to sign meant immediate termination, and courts initially upheld the requirements on the theory that government work was a privilege that could be revoked if an employee’s beliefs were deemed incompatible with their duties.
How Courts Dismantled the Framework
Four Supreme Court decisions across two decades stripped most of the anti-communist apparatus of enforceability.
Yates v. United States (1957) required proof under the Smith Act of advocacy directed at concrete action rather than teaching abstract doctrine, making prosecutions functionally impossible.
Albertson v. Subversive Activities Control Board (1965) killed the McCarran Act’s registration requirement on Fifth Amendment self-incrimination grounds.
Keyishian v. Board of Regents (1967) struck down New York’s loyalty oath requirements for public school and university employees, holding that mere Communist Party membership, without specific intent to further unlawful aims, was not a constitutionally adequate basis for firing a government worker.8Justia. Keyishian v Board of Regents 385 US 589 (1967) That ruling effectively ended the loyalty oath era for public employees nationwide.
Brandenburg v. Ohio (1969) delivered the final blow. The Court held that the government cannot prohibit advocacy of illegal action unless the speech is both directed at inciting imminent lawless action and likely to produce it.9Library of Congress. Brandenburg v Ohio 395 US 444 (1969) That standard replaced the looser “clear and present danger” test and remains the controlling rule for political speech. Under Brandenburg, advocating revolution in the abstract is fully protected by the First Amendment.
The House Un-American Activities Committee, the most visible congressional investigative body of the era, was renamed the House Internal Security Committee in 1969 and abolished in 1975.
What Still Applies Today
Several provisions from this era remain in effect and carry real consequences for specific groups of people.
Immigration and Naturalization
Federal immigration law still treats communist and totalitarian party membership as grounds for exclusion. Under 8 U.S.C. § 1182, any immigrant who is or has been a member of a communist or totalitarian party is generally inadmissible to the United States. Exceptions apply where membership was involuntary, occurred before age 16, was required to obtain basic necessities like food or employment, or ended at least two years before applying for admission (five years if the party controlled a totalitarian government). The Attorney General can also waive the bar for close family members of U.S. citizens and lawful permanent residents.10Office of the Law Revision Counsel. 8 US Code 1182 Inadmissible Aliens
Naturalization carries a similar restriction. Under 8 U.S.C. § 1424, anyone who has been a member of the Communist Party or an affiliated organization within ten years of filing a naturalization application is generally barred from becoming a citizen.11Office of the Law Revision Counsel. 8 USC 1424 Prohibition Upon the Naturalization of Persons Opposed to Government Exemptions mirror those for admission: involuntary membership, lack of awareness of the organization’s aims, membership before age 16, membership required for essentials of living, and membership that ended more than ten years before filing. USCIS guidance places the burden of proving any exemption on the applicant and specifies that participation must have been “minimal in nature.”12U.S. Citizenship and Immigration Services. USCIS Policy Manual Volume 12 Part D Chapter 7 Attachment to the Constitution
Form N-400, the application for naturalization, asks applicants directly whether they have ever been members of the Communist Party or any totalitarian organization.13U.S. Citizenship and Immigration Services. Instructions for Application for Naturalization Form N-400 These questions remain an active part of the vetting process, and a false answer is grounds for denial or revocation of citizenship.
Security Clearance Disclosures
Anyone applying for a national security position must complete Standard Form 86, which asks whether the applicant has ever been a member of an organization “dedicated to the use of violence or force to overthrow the United States Government” with awareness of or intent to further that goal.14U.S. Office of Personnel Management. Standard Form 86 Questionnaire for National Security Positions The form requires the organization’s name, the applicant’s positions and contributions, dates of involvement, and the organization’s address. Membership alone does not automatically disqualify an applicant, but failing to disclose it can. The adjudicative process weighs the nature, voluntariness, and recency of any association.
The Smith Act on the Books
18 U.S.C. § 2385 has never been repealed. It still criminalizes advocating the violent overthrow of the government, with penalties of up to twenty years in prison and a five-year bar from federal employment.2Office of the Law Revision Counsel. 18 USC 2385 Advocating Overthrow of Government After Yates and Brandenburg, any prosecution would need to prove the speech was directed at inciting imminent violent action and was likely to succeed in doing so. Abstract revolutionary rhetoric falls short of that bar. The statute is a legal artifact that could theoretically be invoked in an extraordinary case but has no practical enforcement history in the modern era.