The Alien Registration Act of 1940, better known as the Smith Act, is the federal law that first required every non-citizen in the United States to register with the government and be fingerprinted, and that made it a crime to advocate the violent overthrow of any government in the country. Both halves of the law are still on the books. The registration and address-reporting duties are actively enforced against non-citizens today. The speech provisions, after a series of Supreme Court decisions, are effectively unusable.
What the 1940 Law Did
Congress passed the Act in the anxious months before the United States entered World War II, and it combined two very different projects in one statute.
Title III created the country’s first comprehensive registration system for non-citizens. Every non-citizen aged 14 or older who stayed in the United States for 30 days or longer had to register and submit fingerprints. Parents or legal guardians registered younger children, and a child who turned 14 while in the country had 30 days to appear in person.1Office of the Law Revision Counsel. 8 USC 1302 – Registration of Aliens Registration was handled at local post offices, and completed forms went to the Immigration and Naturalization Service.
Title I targeted political speech. It became a federal crime to advocate the forcible overthrow of the federal, state, or local government, to print or distribute materials urging such action, or to organize or knowingly join a group dedicated to that goal.2Office of the Law Revision Counsel. 18 USC 2385 – Advocating Overthrow of Government A separate set of provisions criminalized encouraging insubordination or disloyalty in the armed forces. A conspiracy clause let prosecutors charge any two or more people who agreed to commit any of these offenses with the same penalties as someone who carried the conduct out.
The membership clause, which reached people based on their associations rather than their personal conduct, became the most controversial feature of the law and drove the major prosecutions of the late 1940s and 1950s.
What Non-Citizens Still Have to Do Today
The registration framework the Act created survives in the modern Immigration and Nationality Act, and USCIS enforces it now.3U.S. Citizenship and Immigration Services. Alien Registration Requirement Two duties matter for anyone who is not a U.S. citizen.
The first is the underlying registration and fingerprinting requirement, which still applies to non-citizens aged 14 or older who remain in the country for 30 days or more, with parents or guardians responsible for children under 14.1Office of the Law Revision Counsel. 8 USC 1302 – Registration of Aliens
The second is address reporting. Under 8 U.S.C. § 1305, a non-citizen has 10 days after moving to notify the government in writing of the new address.4Office of the Law Revision Counsel. 8 USC 1305 – Notices of Change of Address The statute also lets the Attorney General require nationals of specific countries to report their current address on demand, whether or not they have moved. In practice, non-citizens meet the address-change duty by filing Form AR-11 online or by mail through USCIS.5U.S. Citizenship and Immigration Services. How to Change Your Address
Penalties for Failing to Register or Report a Move
The consequences are graded by the type of violation, and some of them run in parallel to any criminal charge.
Willfully failing to register or refusing to be fingerprinted is a misdemeanor. The maximum penalty is a fine of up to $1,000, imprisonment of up to six months, or both. Failing to report an address change is a lesser offense, with a maximum fine of $200 and up to 30 days in jail. A non-citizen who fails to report an address change can also be taken into custody and removed from the country, whether or not they are criminally prosecuted, unless they can show the failure was reasonably excusable or unintentional.6Office of the Law Revision Counsel. 8 USC 1306 – Penalties Filing a registration application with knowingly false statements carries the same penalties as failing to register, plus mandatory removal.
The Speech Provisions Are Still Law, But No Longer Usable
The advocacy statute sits at 18 U.S.C. § 2385, and Congress last touched it in 1994 to update the fine structure. Current maximum penalties for advocating violent overthrow are 20 years in prison and a fine tied to the general federal sentencing statute, which allows felony fines up to $250,000 for individuals and $500,000 for organizations.2Office of the Law Revision Counsel. 18 USC 2385 – Advocating Overthrow of Government7Office of the Law Revision Counsel. 18 USC 3571 – Sentence of Fine A conviction also bars federal employment for five years.
Those numbers are academic. A sequence of Supreme Court decisions between 1951 and 1969 narrowed the statute until federal prosecutors effectively stopped using it.
The first big test was Dennis v. United States in 1951, which upheld the convictions of 11 Communist Party leaders. The Court used a “gravity of the evil” test that gave the government wide room to punish revolutionary speech without proof that a revolution was actually imminent.8Justia. Dennis v. United States, 341 US 494 Over 100 people were eventually indicted under the Act in the wave of prosecutions that followed.
Yates v. United States in 1957 cut that back sharply. The Court held that the Act does not reach “the utterance or publication of abstract doctrine or academic discussion having no quality of incitement to any concrete action,” and that the audience “must be urged to do something, now or in the future, rather than merely to believe in something.”9Oyez. Yates v. United States That distinction between advocating an idea and urging action ended most of the mass prosecutions.
In 1961, the Court dealt with the membership clause in Scales v. United States and Noto v. United States, decided the same day. Scales upheld the clause but only as applied to active members who personally participated in a group’s illegal objectives, not to passive, nominal, or technical members.10Justia. Scales v. United States, 367 US 203 Noto reversed a conviction for lack of evidence that the Communist Party “presently advocated forcible overthrow of the Government” in language “reasonably and ordinarily calculated to incite persons to action.”11Justia. Noto v. United States, 367 US 290 Together the two cases made the membership clause nearly impossible to enforce, and they were the last significant Smith Act prosecutions.
Brandenburg v. Ohio in 1969 closed the door. Although the case did not involve the Smith Act directly, the Court announced a new First Amendment standard for punishing speech that advocates illegal conduct: the speech must be “directed to inciting or producing imminent lawless action” and be “likely to incite or produce such action.”12Justia. Brandenburg v. Ohio, 395 US 444 Under that test, abstract revolutionary rhetoric is protected unless it is both intended to spark immediate illegal action and realistically capable of doing so. No significant Smith Act speech prosecution has occurred since.
Is the Alien Registration Act Still in Effect?
Yes, though the two halves have very different lives today.
The registration and address-reporting duties are alive and enforced. If you are a non-citizen in the United States, you are required to be registered and fingerprinted, and you have 10 days after any move to report the new address to USCIS. Failure to do so carries criminal penalties and, for an unreported move, can also lead to removal.
The speech provisions remain on the books at 18 U.S.C. § 2385, but the Supreme Court’s Brandenburg standard makes prosecution for revolutionary advocacy almost impossible outside of live incitement to immediate violence. The lasting mark of that half of the law is less the convictions it produced than the constitutional lines the courts drew in response to it.