Finally, California Secure Enough to Repeal 1941 Law on Subversives

Friday, August 30, 2013
Senator Joseph McCarthy, left, and Roy Cohn hunted Communists in the 1950s.

A World War II-era law to force “subversive” organizations to register with the California Secretary of State was formally repealed this month.

The Subversive Organization Registration Act of 1941, which underwent a slight name change six years later, has long been considered ineffective and almost certainly unconstitutional. It defined a subversive organization as:

“. . . any corporation, association, society, camp, group, bund, political party, assembly, and every body of organization composed of two or more persons or members, that either or both (1) directly or indirectly advocates, advises, teaches, or practices, the duty, necessity, or propriety of controlling, conducting, seizing, or overthrowing the U.S. or California government or of any political subdivision thereof by force or violence, or (2) is subject to foreign control.”

The law did not ban subversive groups from doing their subversive thing, including attempts to overthrow the government. It just required that groups register with the state and not pass their subversive materials to nonmembers. Violation of the law was a felony, punishable by a fine of up to $10,000 and/or imprisonment.

State lawmakers passed legislation this month that was signed by Governor Jerry Brown repealing the subversives law and according to analysis of it provided by Senate Judiciary Committee staff members, no one ever actually registered as a subversive group during its long history. But there was an instance of a group being prosecuted for violating the law. Just one.

Members of the pro-Nazi Friends of Progress—who marched around dressed like Nazis, blamed the Jews for the war and called for Franklin D. Roosevelt’s impeachment—were prosecuted under the law in 1942. Nine people were sent to prison for not registering as subversives, but the American Civil Liberties Union appealed on their behalf.

The Third District Court of Appeal tossed out the convictions, declaring the accused were not subversives, but did not rule on the law’s constitutionality. The California Supreme Court declined to hear an appeal from the state.   

Upon conclusion of World War II, the fear of subversive Nazi groups morphed into a fear of the Communist red menace. McCarthyism of the 1950s railed against the use of constitutional rights of free speech and association by those who took issue with their government.

California and other states, as well as the federal government, preserved their anti-subversive laws because, as a 1953 essay in the Indiana Law Journal pointed out, “Of the many baneful facets of Communism, perhaps the most detestable is the paradoxical utilization of constitutionally guaranteed rights by Communists to protect themselves from the imposition of punishment and disabilities by a government which they seek to overthrow by force and violence.”

The California Election Code still has sections 5102 and 5200, which say that subversive political parties must be removed from the ballot. California is reportedly one of only six states that still bans certain parties from the ballot for subversive trash talk. These laws, which were passed in 1953, have never been used, according to Ballot Access News.

–Ken Broder

To Learn More:

Relic of the Red Scare About to Vanish (by Bob Egelko, San Francisco Chronicle)

Gov. Brown Repeals 1940s-Era Subversive Organization Registration Law (by Patrick McGreevy, Los Angeles Times)

Assembly Bill 1405 (California Legislative Information)

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