The Case for Shutting Down Organized Leftwing Terror
At the close of 2025, on their podcast, Christopher Rufo and Jonathan “Lomez” Keeperman interviewed Kyle Schideler on the subject of “Why Antifa is Nearly Impossible to Get Rid Of.” Schideler, the director and senior analyst for Homeland Security and Counterterrorism at the Center for Security Policy and a former Claremont Fellow, has been writing about the threat of Antifa for years alongside other forms of domestic extremism, including radical Islamicism.
In the interview, Schideler argued that the federal government has no ability to designate or go after domestic terrorist organizations because of the First Amendment and particularly the freedom of association. He reflected briefly on the use in the 1940s and 1950s of the Smith Act to prosecute Communist Party members, but concluded simply that “We don’t do that anymore.” As an assessment of the current state of the law and American politics, Schideler is undoubtedly on solid ground. However, as a normative and constitutional analysis, his view is deeply unsatisfying. While Rufo and Lomez took no opportunity to push whether we should accept the foreclosure of prosecutions of domestic extremist organizations based on membership, conservatives can look both to history and past conservative thinkers for good reasons to restore the Smith Act and the understanding of the First Amendment which undergirded it.
The Alien Registration Act, known popularly as the “Smith Act,” was passed in 1940 and made it illegal to “knowingly or willfully advocate, abet, advise, or teach the duty, necessity, desirability, or prosperity of overthrowing or destroying any government in the United States by force or violence, or by the assasination of any officer or any such government” or to publish, edit, write any materials or organize for any group that sought the same ends–the destruction of any government of the United States. The act passed with widespread support and followed the precedent of prior wartime acts, namely the Sedition Acts of 1918 and 1798, and the state syndicalism criminal statues passed during what the left deems the “First Red Scare” which made it a felony to be a member of a syndicalist group that advocated for the violent overthrow of the government initially upheld in the 1927 case, Whitney v. California.
Going back to 1798, Federalist Congressmen Harrison Gray Otis, the nephew of the grand patriot lawyer James Otis, was one of the chief advocates for the Alien and Sedition Acts, arguing that “every independent government has a right to preserve and defend itself against injuries and outrages which endanger its existence; for, unless it has this power, it is unworthy of the name of a free government, and must either fall, or be subordinate to some other protection.” Otis pointed both to Congress’s existing powers to punish crimes against the United States, such as perjury, bribery, and stealing public records, not listed in the Constitution, and insisted that the act would not abridge freedom of the press under the Blackstonian definition of it as freedom from prior restraint rather than from prosecution for libel. Otis defended the act twenty years later as a Senator, insisting that as to the constitutional criticism of the Sedition Act, “all governments must possess an inherent right to punish all acts, which, being morally wrong, tend directly to endanger their existence or safety.” It was both an implied power under the “necessary and proper” clause and part of the inherent rights of governments clothed with a duty of self-protection. A few days after his Senate speech in 1818, Justice Joseph Story sent him a letter, expressing admiration for the “manner & matter” of the speech and its “tone of manliness, urbanity, & candour do honour to our Country.” Story commented that twenty years prior, as a “zealous” and impetuous young man, he thought it unconstitutional, but now, having grown wiser, he had “no more doubt of the constitutional power of Congress to enact that law.”
One way to understand the error of Schideler’s assumptions is to examine some of the earlier Supreme Court cases which upheld the Smith Act and other regulations of Communist Party membership, namely the so-called Feinberg Laws, which sought to ban Communist Party members from teaching in public schools. It is true that in each of the cases mentioned here, the Supreme Court later reversed or significantly cabined the rule, but the Court erred in doing so. The most significant initial decision was that of Dennis v. United States in 1950, in which a majority of the Supreme Court upheld the prosecution of Eugene Dennis, the Communist Party of the United States leader, and ten other party leaders. The trial was of great public interest, requiring the presence of hundreds of police officers to deal with thousands of protesters, and it took 347 days, starting on November 1, 1948, to arrive at a guilty verdict for the eleven defendants. Daniel Flynn, in his recent magisterial biography of Frank Meyer, The Man Who Invented Conservatism, writes about how Meyer, the youthful stalwart Stalinist who became the leading “fusionist” in the postwar period, testified against his former allies, bolstering the prosecution’s case by “showing the CPUSA’s fealty to Moscow, belief in violent overthrow of the government as such a central tenet that the group taught it to initiates, and authoritarian approach that allowed for no dissent once deciders had closed perfunctory debate.” Dennis’s five-year sentence was appealed to the Supreme Court after the Court of Appeals upheld the convictions, based on the record reflected in Meyer’s testimony, for reversal under the claim that the Smith Act violated the First Amendment.
Dennis upheld the convictions and the Smith Act’s ban on “advocacy of the overthrow of the Government by force and violence,” with Chief Justice Fred Vinson noting that under the “Clear and Present” test of Schenck v. United States that government must act if it is aware that a group is “aiming at its overthrow is attempting to indoctrinate its members and to commit them to a course whereby they will strike when the leaders feel the circumstances permit.” In Vinson’s view, first and foremost, it was the simple and obvious case that Congress and the federal government had power to “protect existing Government not from change by peaceable, lawful and constitutional means, but from change by violence, revolution and terrorism….Overthrow of the Government by force and violence is certainly a substantial enough interest for the Government to limit speech. Indeed, this is the ultimate value of any society, for if a society cannot protect its very structure from armed internal attack, it must follow that no subordinate value can be protected.”
Both Justices Robert Jackson and Felix Frankfurter penned noteworthy concurrences. Jackson warned of the consequences of treating the Communist Party as just another political party deserving of the protection of the First Amendment as a liberal invitation to self-annihilation and destruction:
But Communist technique in the overturn of a free government was disclosed by the coup d’etat in which they seized power in Czechoslovakia. There, the Communist Party, during its preparatory stage, claimed and received protection for its freedoms of speech, press, and assembly. Pretending to be but another political party, it eventually was conceded participation in government, where it entrenched reliable members chiefly in control of police and information services. When the government faced a foreign and domestic crisis, the Communist Party had established a leverage strong enough to threaten civil war….A virtually bloodless abdication by the elected government admitted the Communists to power, whereupon they instituted a reign of oppression and terror, and ruthlessly denied to all others the freedoms which had sheltered their conspiracy.
Jackson presciently foresaw the Communist problem to be one of a “nationwide conspiracy” which the Schenck “clear and present danger” was insufficient to deal with. The “clear and present danger” test would allow Communists to plot in its initial stages of organization and preparation immune from the law, allowing the government to “move only after imminent action is manifest, when it would, of course, be too late.” Further, it made little sense to Jackson that the Founders somehow granted greater powers to Congress to regulate commerce than to ensure its own existence. The problem, he thought, was that the framers did not anticipate the sort of internal conspiracy that plagued Western society in the form of Communism, and if they had, they would not have extended First Amendment protections to it. Those sentiments fit his dissent in Terminello v. City of Chicago in 1949, in which Jackson argued, “It is the legal right of any American citizen to advocate peaceful adoption of fascism or communism, socialism or capitalism…He is legally free to argue for some anti-American system of government to supersede by constitutional methods the one we have…But we must bear in mind also that no serious outbreak of mob violence, race rioting, lynching, or public disorder is likely to get going without help of some speechmaking to some mass of people.”
Even more so than Jackson, Frankfurter was a progressive and open society liberal who nonetheless recognized the history and precedent that supported the Smith Act’s constitutionality. Frankfurter averred that indeed the Smith Act restricted speech and association, yet, “Just as there are those who regard as invulnerable every measure for which the claim of national survival is invoked, there are those who find in the Constitution a wholly unfettered right of expression. Such literalness treats the words of the Constitution as though they were found on a piece of outworn parchment instead of being words that have called into being a nation with a past to be preserved for the future. The soil in which the Bill of Rights grew was not a soil of arid pedantry. The historic antecedents of the First Amendment preclude the notion that its purpose was to give unqualified immunity to every expression that touched on matters within the range of political interest.” Frankfurter cited numerous state prosecutions of seditious libel from the period as proof of the power, although he made clear his was convinced of the majority as a matter of judicial restraint, bemoaning the “illiberalism” of the Smith Act and pleading for Mill’s open society, complaining that “And if society be not open, the spirit of man is mutilated, and becomes enslaved.”
David Loventhal, in his classic revisionist account of the original meaning of the First Amendment, No Liberty for License, asserts that Dennis, especially Jackson’s concurrence, perfectly understood the Blackstonian principles that undergirded the First Amendment. The national government held in its responsibility all necessary means to combat hostile forces, domestic and foreign, which included “all efforts to encourage the violation of duly enacted laws, not excluding, of course, the greatest of all such efforts–the revolutionary overthrow of the republic itself.” Lowenthal, in agreement with Leonard Levy’s history of the original meaning of the First Amendment, Legacy of Suppression, explicitly notes that the 1798 Sedition Act was a proper use of congressional power because suppression of seditious libel was entirely legitimate and the logical extension of the power to regulate any “open and organized calls for the overthrow of the republic.”
As noted, Dennis and the Smith Act were not the only example in the immediate postwar period of a briefly successful restriction of Communist activities that should be viewed as a usable and just precedent today. So-called “Feinberg laws,” named for New York State Senator Benjamin Feinberg, were state laws to rid the state public school system of seditious actors and subversives–that is, members of the Communist Party–using membership in the party as sufficient cause to remove such public school teachers. Like the Smith Act, the 1949 New York law had broad bipartisan support, passing 125-22 in the assembly and 41-14 in the Senate. The Feinberg Act did a few notable things: one, it made “ineligible for employment in any public school any member of any organization advocating the overthrow of the Government by force, violence or any unlawful means;” two, it made a removable cause for “a person employed as superintendent of schools, teacher or employee in the public schools, in any city or school district of the state, shall be removed from such position for the utterances of any treasonable or seditious word or words or the doing of any treasonable or seditious act or acts while holding such position.;” and third, the Civil Service Law provision prescribed that “persons who are guilty of treasonable or seditious acts or who publish, print, edit, issue or sell any book, paper or document in any form containing or advocating, advising or teaching the doctrine that the Government of the United States or a political subdivision thereof should be overthrown by force, or who organizes or helps to organize or becomes a member of any society or group of persons teaching or advocating overthrow of the government by force or violence or any other unlawful means, shall be ineligible for appointment to any office or position in the service of the state or of any civil division or city thereof.”
Both the Communist Party and the New York City school teachers challenged the constitutionality of the law. In the 1952 case of Adler v. Board of Education, the majority opinion of Justice Shermon Milton takes quick note of the lengthy legislative record: “[the law’s preamble] makes elaborate findings that members of subversive groups, particularly of the Communist Party and its affiliated organizations, have been infiltrating into public employment in the public schools of the State; that this has occurred and continues notwithstanding the existence of protective statutes designed to prevent the appointment to or retention in employment in public office, and particularly in the public schools, of members of any organizations which teach or advocate that the government of the United States or of any state or political subdivision thereof shall be overthrown by force or violence or by any other unlawful means.” Such Communist teachers used their positions to disseminate propaganda and to advocate and teach their subversive doctrines.
Milton sharply concluded that the state had not deprived public school teachers of their rights to free speech and assembly, as “such persons are or may be denied, under the statutes in question, the privilege of working for the school system of the State of New York because, first, of their advocacy of the overthrow of the government by force or violence, or, secondly, by unexplained membership in an organization found by the school authorities, after notice and hearing, to teach and advocate the overthrow of the government by force or violence, and known by such persons to have such purpose.” The Court noted that the first proposition had already been made clear by the Court nearly 30 years earlier in the case of Gitlow v. New York, which upheld New York’s Criminal Anarchy Law because states, under their police powers, had legitimate means to punish those who abuse their First Amendment freedoms by “utterances inimical to the public welfare, tending to corrupt public morals, incite to crime or disturb the public peace.” Milton, following the logic of Dennis, noted that the integral powers of governments to protect themselves from destruction and places condition upon state employment did nothing to abridge the First Amendment, properly understood.
Each of these major precedents–from Whitney to Dennis to Adler–were, in a short time, either directly overturned or limited to their facts. In 1957, in Yates v. United States, reviewing the Smith Act prosecutions of fourteen lower members of the Communist Party, a 6-1 Court ruled that for the Smith Act’s provisions to be constitutional, it must require an overt act, not mere holding of the beliefs of the Communist Party or organization. As the Warren Court brought forth its liberal constitutional revolution, which, in the analysis of L. Brent Bozell Jr., replaced the twin Constitutions of written one of 1787 and the unwritten fluid constitution with a roving constitutional convention of a judicial dictatorship which made Supreme Court decisions part of the “fixed” constitution, the result of which was that many good rulings were overruled.
In Keyishian v. Board of Regents, a 5-4 court overturned Adler and declared the Feinberg Law–specifically its provisions regarding Communist Party membership as sufficient cause to be fired from public service in education–overbroad and vague. In Justice William Brennan’s majority opinion, the paragon of modern liberalism made the credulous assertion that “our experience under the Sedition Act of 1798 taught us that dangers fatal to First Amendment freedoms inhere in the word ‘seditious,’” citing the logic in another seminal Warren Court decision, New York Times v. Sullivan. In Brennan’s Sullivan opinion, he managed to cite Levy’s Legacy of Suppression for the proposition that the controversy over the Sedition Act of 1798 “first crystallized a national awareness of the central meaning of the First Amendment.” When he published an updated version of Legacy of Suppression, Emergence of a Free Press in 1985, he wrote in his preface of the “delicious irony” that Brennan used his book in service of one “of its foremost libertarian decisions” and he singled out what he called a “turgid yet critical passage” in which Brennan declared, “If neither factual error nor defamatory content suffices to remove the constitutional shield from criticism of official conduct, the combination of the two elements is no less adequate. This is the lesson to be drawn from the great controversy over the Sedition Act….” As Levy puts it, Brennan’s opinion says nothing about the American Revolution or the First Amendment overturning the common law of seditious libel, forsaking any analysis of the original intentions of the framers or meaning of the amendment for a “broad new libertarianism which repudiated the Sedition Act.” After all, the principal thesis of Levy’s work, quite contrary to the normative libertarian values of Levy himself, was to “demolish the proposition formerly accepted in both law and history that it was the intent of the American Revolution or the Framers of the First Amendment to abolish the common law of seditious libel.”
Brennan’s artistry of banality carried over to Keyishian, in which he made the openly normative claim that, “Our Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us, and not merely to the teachers concerned. That freedom is therefore a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom….The classroom is peculiarly the ‘marketplace of ideas.’ The Nation’s future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth ‘out of a multitude of tongues, [rather] than through any kind of authoritative selection.’” A hackneyed recycling of Millian liberal open society notions of the purposes of free speech and, later, academic freedom, Brennan’s statement has nothing to do with the original meaning of the First Amendment or the long-held American tradition.
Justice Clark, in dissent, joined by Justices White, Harlan, and Stewart, quoted from Minton’s opinion in Adler, rejecting such open society liberalism notions because: “A teacher works in a sensitive area in a school room. There, he shapes the attitude of young minds towards the society in which they live. In this, the state has a vital concern. It must preserve the integrity of the schools. That the school authorities have the right and the duty to screen the officials, teachers, and employees as to their fitness to maintain the integrity of the schools as a part of ordered society cannot be doubted.” Clark concluded that in sweeping aside the Feinberg Law as “overbroad,” the majority had taken away “one of our most precious rights, namely, the right of self-preservation” in a case in which the issue was narrow–not about whether the First Amendment was infringed, but whether the “State provide that one who, after a hearing with full judicial review, is found to have willfully and deliberately advocated, advised, or taught that our Government should be overthrown by force or violence or other unlawful means… [or has willfully and deliberate printed or personally advocated such doctrine or became a member of an organization that does so] is prima facie disqualified from teaching in its university.”
Brandenburg v. Ohio, a per curiam unanimous decision only two years later, further eroded Dennis and the precedent it drew from, overruling Whitney and replacing the “clear and present danger” standard with the “imminency” test that states can only forbid advocacy of the use of force or of law violation where such advocacy is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” When Mr. Schildeler says “we don’t do that anymore,” he is essentially distilling the lessons of Brandenberg and the Warren Court revolution, with it cases like Yates, Sullivan, Keysihian and others which reflected the shift from the original founding meaning of the First Amendment freedoms, based in republicanism, towards a radical libertarian sensibility about the “marketplace of ideas” in an open society in which truth is inherently subjective.
A much longer examination of the various security acts, subversive commissions, and efforts of Senator Joseph McCarthy will help to further evidence the justice of those acts and mission but it will suffice to say that such Americans acted to preserve their society and civilization. If conservatives wish to really draw victories against today’s subversive forces, just as determined to undermine and destroy American society and its traditions as its forebears of 70 years and 100 years ago, they will need tools analogous to the Smith Act and Feinberg laws to do so. To get there, many more will need to be convinced that the leading conservative statesmen and thinkers of the midcentury were righteous in their determination that governments had a power and duty to protect and uphold the public orthodoxy and that the First Amendment, far from denying government that right, carries forth a venerable American tradition of dutifully acting to preserve popular government from the forces of internal strife and destruction.
