18 U.S.C. § 2385

Advocating overthrow of Government

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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.

Notes of Decisions

Cited in 238 cases (8 in the last 5 years), 1948–2026 · leading case: United States v. Salerno, 481 U.S. 739 (1987).

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United States v. Salerno, 481 U.S. 739 (1987). · cites it 2× “Reviewing the application for bail pending appeal by members of the American Communist Party convicted under the Smith Act, 18 U. S. C. § 2385 , Justice Jackson wrote: "Grave public danger is said to result from what [the defendants] may be expected to do, in addition to what…”

Scales v. United States, 367 U.S. 203 (1961). · cites it 6× “18 U. S. C. § 2385 . The Act, among other things, makes a felony the acquisition or holding of knowing membership in any organization which advocates the overthrow of the Government of the United States by force or violence.”

Speiser v. Randall, 357 U.S. 513 (1958). · cites it 4× “by force or violence or other unlawful means" and advocacy of "support of a foreign government against the United States in event of hostilities" as reaching only conduct which may constitutionally be punished under either the California Criminal Syndicalism Act, Cal.”

Pennsylvania v. Nelson, 350 U.S. 497 (1956). · cites it 6× “18 U. S. C. § 2385 . 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,…”

Dennis v. United States, 341 U.S. 494 (1951). · cites it 4× “) §§ 10, 11 (see present 18 U. S. C. § 2385 ), provide as follows: "SEC.”

Baggett v. Bullitt, 377 U.S. 360 (1964). · cites it 4× “" 18 U. S. C. § 2385 . (Emphasis supplied.) The opinion of the Court in Dennis uses this language in discussing the vagueness claim: "We agree that the standard as defined is not a neat, mathematical formulary.”

Rankin v. McPherson, 483 U.S. 378 (1987). · cites it 2× “§ 871 (a) or 18 U. S. C. § 2385 , or, indeed, that could properly be criminalized at all.”

Griffin v. United States, 502 U.S. 46 (1991). · cites it 2× “The first of these objects (the "advocacy" charge) violated § 2(a)(1) of the Smith Act of 1940 (subsequently repealed and substantially reenacted as 18 U. S. C. § 2385 ), and the second of them (the "organizing" charge) violated § 2(a)(3).”

United States v. Farhane, 634 F.3d 127 (2d Cir. 2011). · cites it 2× “No such concern arises with respect to § 2339B, however, because, as we have already observed, that statute does not prohibit simple membership in a terrorist organization.”

Communist Party of United States v. Subversive Activities Control Bd., 367 U.S. 1 (1961). · cites it 4× “Under the Smith Act, 18 U. S. C. § 2385 , the very subject matter under regulation is interwoven with criminal activity.”

People v. Johnson, 303 P.3d 379 (Cal. 2013). · cites it 2× “Likewise, the Smith Act ( 18 U.S.C. § 2385 ) criminalizes the organization of a group advocating the violent overthrow of the government.”

Emspak v. United States, 349 U.S. 190 (1955). · cites it 4× “[22] 18 U. S. C. § 2385 ; 18 U. S. C. § 371 . [23] 29 U.”

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