The Smith Act Prosecutions

Apropos of Scott Martelle, The Fear Within: Spies, Commies, and American Democracy on Trial, recently mentioned on this blog, I discussed the Smith Act prosecutions a few years back in the Northwestern University Law Review. I concluded that ideally the government should have prosecuted the defendants for conspiracy to commit espionage, but that the Smith Act prosecutions may have been a reasonable second-best alternative under the circumstances:

Thus, the government was faced with several unattractive options: prosecute Communists for espionage and reveal the Venona decoding, destroying an extremely valuable source of information on the Soviets; spend huge resources monitoring the CPUSA in a potentially fruitless attempt to disrupt its espionage activities; ignore the CPUSA's espionage and continue to allow American secrets to leak to the country's greatest enemy; or stretch the boundaries of the First Amendment and prosecute CPUSA leaders under the Smith Act, as the government had previously done to Nazi and fascist leaders [prosecutions that are considered far less noteworthy by historians, and that were supported by CPUSA leaders!]. The government did not obviously choose the worst option.

Of course, I spent several pages elaborating on these arguments, so if you're interested, read the whole thing.