Title 18 (the federal criminal code), Section 2385 states:
§2385. Advocating overthrow of Government
Whoever knowingly or willfully advocates, abets, advises, or teaches the duty, necessity, desirability, or propriety of overthrowing or destroying the government of the United States or the government of any State, Territory, District or Possession thereof, or the government of any political subdivision therein, by force or violence, or by the assassination of any officer of any such government; or
Whoever, with intent to cause the overthrow or destruction of any such government, prints, publishes, edits, issues, circulates, sells, distributes, or publicly displays any written or printed matter advocating, advising, or teaching the duty, necessity, desirability, or propriety of overthrowing or destroying any government in the United States by force or violence, or attempts to do so; or
Whoever 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; or becomes or is a member of, or affiliates with, any such society, group, or assembly of persons, knowing the purposes thereof—
Shall be fined under this title or imprisoned not more than twenty years, or both, and shall be ineligible for employment by the United States or any department or agency thereof, for the five years next following his conviction.
If two or more persons conspire to commit any offense named in this section, each shall be fined under this title or imprisoned not more than twenty years, or both, and shall be ineligible for employment by the United States or any department or agency thereof, for the five years next following his conviction.
As used in this section, the terms “organizes” and “organize”, with respect to any society, group, or assembly of persons, include the recruiting of new members, the forming of new units, and the regrouping or expansion of existing clubs, classes, and other units of such society, group, or assembly of persons.
This is the Smith Act of 1940, as amended. The Supreme Court has taken four occasions to review cases prosecuted under the Smith Act. In the first case, Dennis v. US, 341 U.S.494 (1951), the Court heard appeals from Communist Party leaders who had been convicted of violating the Smith Act and whose conviction had been affirmed by the lower court. The Court examined the First Amendment and other constitutional challenges, was unpersuaded, upheld the statute as constitutional, and affirmed the convictions.
The second time the Court took a look at the Smith Act was six years later in the case of Yates v. US, 354 U.S. 298 (1957). By this time, however, the Court was now under the spell of Chief Justice Earl Warren and the other liberal Justices of the time. They had already tested their mettle in Brown v. Board of Education some three years earlier. The question might have been reasonably asked, would the Court sustain a First Amendment challenge and effectively overrule Dennis?