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Espionage Act [June 15, 1917] - History

Espionage Act [June 15, 1917] - History

An Act To punish acts of interference with the foreign relations, the neutrality, and the foreign commerce of the United States, to punish espionage, and better to enforce the criminal laws of the United States, and for other purposes.

TITLE I.

SECTION I. That (a) whoever, for the purpose of obtaining information respecting the national defense with intent or reason to believe that the information to be obtained is to be used to the injury of the United States, or to the advantage of any foreign nation, goes upon, enters, flies over, or otherwise obtains information concerning any vessel, aircraft, work of defense, navy yard, naval station, submarine base, coaling station, fort, battery, torpedo station, dockyard, canal, railroad, arsenal, camp, factory, mine, telegraph, telephone, wireless, or signal station, building, office, or other place connected with the national defense, owned or constructed, or in progress of construction by the United States or under the control of the United States, or of any of its officers or agents, or within the exclusive jurisdiction of the United States, or any place in which any vessel, aircraft, arms, munitions, or other materials or instruments for use in time of war are being made, prepared, repaired, or stored, under any contract or agreement with the United States, or with any person on behalf of the United States, or otherwise on behalf of the United States, or any prohibited place within the meaning of section six of this title; or (b) whoever for the purpose aforesaid, and with like intent or reason to believe, copies takes, makes, or obtains, or attempts, or induces or aids another to copy, take, make, or obtain, any sketch, photograph, photographic negative, blue print, plan, map, model, instrument, appliance, document, writing, or note of anything connected with the national defense; or (c) whoever, for the purpose aforesaid, receives or obtains or agrees or attempts or induces or aids another to receive or obtain from any person, or from any source whatever, any document, writing, code book, signal book, sketch, photograph, photographic negative, blue print, plan, map, model, instrument, appliance, or note, of anything connected with the national defense, knowing or having reason to believe, at the time he receives or obtains, or agrees or attempts or induces or aids another to receive or obtain it, that it has been or will be obtained, taken, made or disposed of by any person contrary to the provisions of this title; or (d) whoever, lawfully or unlawfully having possession of, access to, control over, or being entrusted with any document, writing, code book, signal book, sketch, photograph, photographic negative, blue print, plan, map, model, instrument, appliance, or note relating to the national defense, willfully communicates or transmits or attempts to communicate or transmit the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it on demand to the officer or employee of the United States entitled to receive it; or (e) whoever, being entrusted with or having lawful possession or control of any document, writing, code book, signal book, sketch, photograph, photographic negative, blue print, plan, map, model, note, or information, relating to the national defense, through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed, shall be punished by a fine of not more than $IO, OOO, or by imprisonment for not more than two years or both.

SEC. 2. (a) Whoever, with intent or reason to believe that it is to be used to the injury of the United States or to the advantage of a foreign nation, communicates, delivers, or transmits, or attempts to, or aids or induces another to, communicate, deliver, or transmit, to any foreign government, or to any faction or party or military or naval force within a foreign country, whether recognized or unrecognized by the United States, or to any representative, officer, agent, employee, subject, or citizen thereof, either directly or indirectly, any document, writing, code book, signal book, sketch, photograph, photographic negative, blue print, plan, map, model, note, instrument, appliance, or information relating to the national defense, shall be punished by imprisonment for not more than twenty years: Provided, That whoever shall violate the provisions of subsection (a) of this section in time of war shall be punished by death or by imprisonment for not more than thirty years; and (b) whoever, in time of war, with intent that the same shall be communicated to the enemy, shall collect, record, publish, or communicate, or attempt to elicit any information with respect to the movement, numbers, description, condition, or disposition of any of the armed forces, ships, aircraft, or war materials of the United States, or with respect to the plans or conduct, or supposed plans or conduct of any naval or military operations, or with respect to any works or measures undertaken for or connected with, or intended for the fortification or defense of any place, or any other information relating to the public defense, which might be useful to the enemy, shall be punished by death or by imprisonment for not more than thirty years.

SEC. 3. Whoever, when the United States is at war, shall willfully make or convey false reports or false statements with intent to interfere with the operation or success of the military or naval forces of the United States or to promote the success of its enemies and whoever, when the United States is at war, shall willfully cause or attempt to cause insubordination, disloyalty, mutiny, or refusal of duty, in the military or naval forces of the United States, or shall willfully obstruct the recruiting or enlistment service of the United States, to the injury of the service or of the United States, shall be punished by a fine of not more than $IO, OOO or imprisonment for not more than twenty years, or both.

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TITLE XII.

SECTION I, Every letter, writing, circular, postal card, picture, print, engraving, photograph, newspaper, pamphlet, book, or other publication, matter or thing, of any kind, in violation of any of the provisions of this Act is hereby declared to be nonmailable matter and shall not be conveyed in the mails or delivered from any post office or by any letter carrier.... SEC. Every letter, writing, circular, postal card, picture, print, engraving, photograph, newspaper, pamphlet, book, or other publication, matter or thing, of any kind, containing any matter advocating or urging treason, insurrection, or forcible resistance to any law of the United States, is hereby declared to be nonmailable.


The Sedition and Espionage Acts Were Designed to Quash Dissent During WWI

When the United States finally decided to enter World War I in 1917, there was opposition at home by those who wanted America to remain neutral in the European conflict and groups who actively opposed the draft, the first of its kind in the country. The most vocal dissent came from pacifists, anarchists and socialists, many of whom were Irish, German and Russian immigrants and whose loyalty to America was openly questioned.

Fearing that anti-war speeches and street pamphlets would undermine the war effort, President Woodrow Wilson and Congress passed two laws, the Espionage Act of 1917 and the Sedition Act of 1918, that criminalized any 𠇍isloyal, profane, scurrilous, or abusive language” about the U.S. government or military, or any speech intended to “incite insubordination, disloyalty, mutiny, or refusal of duty.” (These were different and separate from the Alien and Sedition Acts passed in 1798 that were mostly repealed or expired by 1802.)

The two broadly worded laws of 1917 and 1918 ultimately came to be viewed as some of the most egregious violations of the Constitution’s free speech protections. They were written in an environment of wartime panic, and resulted in the arrest and prosecution of more than 2,000 Americans, some of whom were sentenced to 20 years in prison for sedition.

A handful of those convictions were appealed to the Supreme Court, which upheld the Espionage and Sedition Acts as constitutional limits on free speech in a time of war. One famous decision penned by Justice Oliver Wendell Holmes introduced the 𠇌lear and present danger” test, which he compared to shouting 𠇏ire!” in a crowded theater.

WATCH: The Last Day of World War I on HISTORY Vault


America's 'Official Secrets Act' — the long, sad history of the 100 year-old Espionage Act

It was April 1917, and Senator Charles Thomas of Colorado had serious concerns about the bill before the U.S. Senate. Following extensive debate and a few modifications, though, the bill passed both the Senate and the House of Representatives.

One hundred years ago today, on June 15, 1917, President Woodrow Wilson signed the bill into law. Officially titled "An act to punish acts of interference with the foreign relations, the neutrality and the foreign commerce of the United States, to punish espionage, and better to enforce the criminal laws of the United States, and for other purposes," the law is more commonly known as the Espionage Act of 1917.

Senator Thomas’ warning about the Espionage Act would prove prescient in the century after it became law, as its vague language about foreign espionage was re-interpreted as a broad prohibition against the activities of anti-war activists, whistleblowers and journalists.

The Espionage Act was originally one of a series of bills that Congress passed in 1917 as the nation prepared to enter World War I, including bills establishing a draft and regulating the domestic economy. The law was ostensibly an attempt to stiffen penalties against espionage activities, including the collection and communication of sensitive national security information, that would benefit Germany and other nations waging war against the U.S.

I very much fear that with the best of intention we may place upon the statute books something that will rise to plague us in the immediate future

In the century since the act went into effect, it’s been used against much more than just foreign spies. Socialists, anti-war activists, whistleblowers and journalists have all found themselves targets of the Espionage Act. The law — which remains on the books to this day, as Title 18, Part 1, Chapter 37 of the U.S. Code — has grown into an American version of the U.K.’s “Official Secrets Act,” which outlaws the disclosure of any “information, documents or other articles relating to security or intelligence.”

How did the Espionage Act, originally intended to prevent German espionage during WWI, grow into a broad anti-disclosure law? It’s mostly thanks to a few amendments and a lot of creative re-interpretation by federal prosecutors and judges.

From the very start, the Espionage Act had a First Amendment problem.

Members of Congress, even in 1917, knew such a law could have serious implications for the freedom of the press, and many were divided on whether the government had the authority to restrict the press from publishing certain information—even during wartime.

An early draft of the Espionage Act included a section, at President Wilson’s behest, that would have given the president the power to issue regulations about what the press was and was not allowed to report. That provision aroused great debate in the Senate.

Senator Thomas of Colorado offered a strong defense of press freedom.

“Of all times in time of war the press should be free,” he said. “That of all occasions in human affairs calls for a press vigilant and bold, independent and uncensored. Better to lose a battle than to lose the vast advantage of a free press.”

“I am a thorough believer in the freedom of the press,” he said later during the debate. “I know that freedom has been abused. It must be abused in countries like this.”

Senator Knute Nelson of Minnesota, a Civil War veteran, took a different view of the press, recalling how newspapers had published daily troop movements during the Civil War.

“I remember well how the movements of our Army were constantly hampered because of the daily publicity that was given to all our movements and all our preparations by the press of the country,” he said. “They had reporters from most of the leading papers of the country with every army in the field and they would report every movement.”

He also compared journalists to mustard gas.

“[The war] has compelled the soldiers of the allies to protect themselves with masks against poisonous gases,” he said. “I think we owe it as a duty to protect our own men, our soldiers and sailors, in like manner against the gases of these newsmongers, these publishers here. We had better pass legislation that will operate like the gas masks in Europe to protect our soldiers and sailors against the insidious attacks of these men.”

Other senators tried to figure out where exactly the line could be drawn and how to ensure that the final version of the bill was narrow enough to criminalize spying without criminalizing journalism. This involved a lot of hypotheticals.

“Suppose a newspaper correspondent were to go into the office of the Secretary of War and talk to him about the number of troops that were in a certain division or under a certain command, or about the movement of those troops, whether that information is ever used or not, whether it is ever published or not, under the terms of this provision that in and of itself makes him guilty of a violation of the statute,” Senator James Watson of Indiana said.

“There ought not to be, it seems to me, a crime made of something collected in good faith, or some information solicited for a lawful purpose about our own country and our own conditions simply because it might be made useful to the enemy if somebody conveyed it to them,” Senator Thomas Sterling of South Dakota said.

“If a man publishes in a paper plans of our military authorities which do become of use to the enemy, although the publisher did not intend that they should, is it within the power of Congress to pass any law to punish him for publishing such things, although he did not intend to furnish aid and comfort to the enemy?” Senator Frank Brandegee of Connecticut asked.

There were endless discussions about whether the proposed statute should include words like “intent” and whether to replace the phrase “might be useful to the enemy” with “calculated to be useful to the enemy.” There was also a debate over whether Congress was restrained by the First Amendment during wartime. Senator Thomas Walsh of Montana argued that Congress’ authority to wage war included the ability to pass legislation that curtailed First Amendment rights.

“Seeing that it is a war measure, applicable only in time of war, the committee believed that we could afford to subject the innocent citizen to whatever discomfort might come to him by reason of this act, rather than to allow promiscuous publications to be made that might be invaluable to the enemy,” he said.

But Senator Thomas of Colorado warned that the law, though passed during wartime, could quickly outgrow its original purpose.

“Yet we are going ahead with this as a war measure, although when enacted it will be permanent in its operation,” he said.

In the end, the provision allowing the president to exercise overt censorship over the press was removed before the law was passed. The final version of the bill included prohibitions on the collection, retention, communication and publication of “information respecting the national defense with intent or reason to believe that the information is to be used to the injury of the United States, or to the advantage of any foreign nation.”

Congress likely thought that it had passed a relatively narrow law targeting foreign spies, without any provisions regarding censorship of the press.

A 1973 Columbia Law Review article summed up the legislative history of the Espionage Act: “It was enacted after a series of legislative debates, amendments and conferences that may fairly be read as excluding criminal sanctions for well-meaning publication of information no matter what damage to the national security might ensue and regardless of whether the publisher knew its publication would be damaging.”

If a man publishes in a paper plans of our military authorities which do become of use to the enemy, is it within the power of Congress to pass any law to punish him for publishing such things, although he did not intend to furnish aid and comfort to the enemy?

Unfortunately, the sections of the law pertaining to foreign espionage were worded so vaguely that federal prosecutors and courts began in the latter half of the 20th century to use the law against both journalists and their sources.

The first victims of the Espionage Act, however, were members of the Socialist Party, thanks to a package of amendments passed in 1918 known as the “Sedition Act.” These amendments outlawed “disloyal, profane, scurrilous, or abusive language” that aimed to “incite, provoke or encourage resistance to the United States, or to promote the cause of its enemies.” It was mainly targeted at socialist activists who opposed U.S. involvement in WWI, and criticized the mandatory military draft. Socialist Party presidential candidate Eugene Debs, Socialist Party general secretary Charles Schenk, and anti-war newspaper publisher Jacob Frohwerk were three of the many socialists charged and convicted under the new provisions of the Espionage Act.

In early 1919, the Supreme Court upheld the convictions of Schenk, Frohwerk and Debs. In a shameful series of unanimous opinions written by Justice Oliver Wendell Holmes, Jr., the Court ruled that the First Amendment did not prevent Congress from prohibiting speech that could undermine the war effort during wartime.

Holmes infamously declared that just as the First Amendment would not protect “falsely shouting ‘fire’ in a crowded theatre,” so it did not protect Schenk, who was accused of publishing leaflets critical of the draft. Frohwerk was accused of publishing anti-war articles Holmes said that amounted to a “wilful obstruction” of the U.S. military’s recruitment efforts. Debs was accused of giving an anti-war speech that praised draft dodgers Holmes said that had the “intention and effect of obstructing the draft and recruitment for the war.”

The Sedition Act was repealed in 1920, and President Warren Harding commuted Debs’ sentence the following year. The Supreme Court decisions in Schenk, Frohwerk and Debs were never explicitly overturned, but later Court decisions established much stronger free speech protections and thankfully those decisions are generally considered bad law today.

Then, during World War II, there were aborted attempts to use the Espionage Act directly against the press.

In 1942, the Chicago Tribune reported that the U.S. Navy had advance knowledge of Japan’s naval strategy in the Battle of Midway. The article allegedly implied that the U.S. Navy had found a way to decrypt the Japanese military’s encoded messages — a fact which was not yet public knowledge. President Franklin Roosevelt, angry that the Tribune article would prompt the Japanese to change their secret code, asked the Department of Justice to look into charging the Tribune reporter under the Espionage Act. A grand jury was empaneled in Chicago, but the members of the grand jury declined to issue an indictment against the reporters.

In 1945, the FBI raided the offices of the pro-Communist foreign affairs journal Amerasia, which had obtained hundreds of U.S. intelligence and State Department documents marked “secret” and “top secret” and published articles based on them. The journal’s editors, and its sources in the federal government, were arrested on charges of violating the Espionage Act. But a grand jury — finding no evidence that the defendants had passed classified information to foreign governments — declined to issue any indictments under the Espionage Act, instead charging some of the Amerasia staffers with the lesser offense of theft of government property.

The failure to prosecute Amerasia editors for for espionage enraged conservative politicians, including Sen. Joseph McCarthy, who exploited the case to argue that the federal government was soft on Communism because it had been infiltrated by secret Communists.

In the ensuing anti-Communist hysteria, Congress passed a number of laws focused on domestic security and the suppression of left-wing political ideology. Among these laws were bills that amended the Espionage Act, adding section 798 and sub-sections 793(e) and (g).

Sub-section 793(e) applies the Espionage Act to people who disclose national security information that they were never authorized to have in the first place, while 793(g) makes it a crime to “conspire to violate” the Espionage Act, even if no national security information is actually disclosed. In other words, the Espionage Act doesn’t just apply to government employees who violate their security clearances by providing sensitive national security information to foreign spies it applies to any person who learns of such information and then communicates it to any other person.

Section 798 expands the scope of the Espionage Act to cover all classified information related to communications intelligence (e.g. wiretaps), including all classified information “obtained by the processes of communication intelligence from the communications of any foreign government.” Under 798, it’s not just illegal to disclose the methods that the U.S. government uses to spy on foreign governments it’s also illegal to disclose any classified information that the U.S. government learns as a result of that spying.

These amendments transformed the Espionage Act, which had started as a wartime anti-spying statute, into a broad statute that outlawed the possession and communication of entire classes of information.

Nobody other than a spy, saboteur, or other person who would weaken the internal security of the Nation need have any fear of prosecution

If we were to take the Espionage Act at its face value, it is likely illegal for you to talk to anyone without a security clearance about any information marked “classified” that was obtained through signals intelligence. It does not matter whether you had a top-secret security clearance or just found a classified document on the sidewalk, nor does it matter why you decided to communicate the information or whether the disclosure of the information was actually harmful. It is illegal merely to know and communicate certain information.

It’s not clear that this was actually what Congress intended when it passed these absurdly broad amendments to the Espionage Act.

In 1949, as Congress was debating proposed amendments to the Espionage Act, Senator Harley Kilgore of West Virginia wrote a letter to Senator Pat McCarran on Nevada, the sponsor of the legislation, warning that the amendments “might make practically every newspaper in the United States and all the publishers, editors, and reporters into criminals without their doing any wrongful act.” McCarran asked Attorney General Tom Clark to respond to Kilgore, and Clark tried to reassure the senator that journalists would have nothing to fear from the Espionage Act.

“The history and application of the existing espionage statutes which this bill would amend only in part,” the attorney general wrote, “and the language, history, hearings and report of the committee relative to this bill, together with the integrity of the three branches of the Government which enact, enforce, and apply the law, would indicate that nobody other than a spy, saboteur, or other person who would weaken the internal security of the Nation need have any fear of prosecution under either existing law or the provisions of this bill.”

Two decades later, the federal government tried to use the Espionage Act against newspapers.


Interesting Information About the Historic Espionage Act of 1917

To protect government documents, information from getting into wrong hands during World War I, a historic act passed by the U.S. government which was to impose penalties on those involved in spying and eradicate the poison of disloyalty. Read more about the Espionage Act of 1917.

To protect government documents, information from getting into wrong hands during World War I, a historic act passed by the U.S. government which was to impose penalties on those involved in spying and eradicate the poison of disloyalty. Read more about the Espionage Act of 1917.

The silent motion picture The Spirit of 󈨐 which was released just a month after America entered World War I, depicted multiple atrocities committed by the British during the war. It was confiscated by the U.S. government on the grounds that it was aiding the German enemy.

The film’s producer, Robert Goldstein, was sentenced to three years in prison for making the film and restoring the objectionable, deleted scenes in the film. At present, no known print of the film exists, and it’s categorized as a lost film.

Considered as one of the most controversial laws in the American history, The Espionage Act, was first conceived in December 1915, but, it was only on June 15, 1917 that it was passed as a law. The main reason involved in passing this act by the Congress was to aid America in coming out victorious in the World War I.

Some historians argue that it was an obstacle to the freedom of speech, while others support it saying that it was duly important in safeguarding the national interest at the time of war.

Legal Definition of The Espionage Act of 1917

The Espionage Act is a federal legislature enacted in 1917, it punishes espionage, spying, and related crimes. The Act prohibits various other activities, including certain kinds of expression.

The Act pursuant to 18 U.S.C. §793, provides that a person will be punished with fine or imprisoned for not more than ten years if she/he copies, takes, makes, or obtains, or attempts to copy, take, make, or obtain any sketch, photograph, photographic negative….. appliance, document, writing, or note of anything connected with the national defense.

The Act deems any person a criminal if she/he is found obtaining information with respect to the national defense with a reason to believe that the information to be obtained is to be used to the injury of the U.S.

Summary of The Espionage Act of 1917

► During his campaign for presidency, Woodrow Wilson, stood on the affirmed ground that America would not deal with― the ongoing Great War (World War I) in Europe.

► But a lot of events culminated in the participation of the U.S. in the World War I, for instance, the luxury liner Lusitania was sunk by a German U-boat killing 128 Americans. According to the Zimmerman letter, Germany was coaxing Mexico to go against America, and there was danger that Great Britain would eventually collapse under German pressure.

► President Woodrow Wilson was successfully re-elected for the second term, and he decided that due to the ongoing catastrophic events, the U.S. would join forces in World War I. This led to mass war criticism making it difficult for the government to recruit soldiers for the war.

Another growing concern for the government was major opposition by the Industrial Workers of the World ( IWW a.k.a The Wobblies) who were sympathetic towards the Global Labor Movement, and felt that the U.S. was wrongly opposing nations with large labor movements.

► In order to curb all the existing threats from the opposition groups and to safeguard national security, Congress passed the federal law called the Espionage Act on June 15, 1917. There were already a lot of laws pertaining to espionage and sedition, but this act was based mainly on the Defense Secrets Act of 1911.

By this act, the severity of the punishment towards a person caught committing treason or engaging in acts of espionage was unthinkable, leading even to a possible death penalty.

► The Espionage Act meted out a penalty of up to 20 years imprisonment for anyone convicted of interfering with military recruitment, sharing government defense secrets, or threatening national security. The law also levied fines of up to $10,000 for those convicted.

It also gave additional powers to the Postmaster General to confiscate any mail that might be deemed seditious or treasonable. This law also extended over an individual who indirectly participated in group conspiracies that threatened national interest, and also over those who failed to report such crimes.

► In the earlier drafted version of the bill, President Wilson had included censorship of the press, but this did not get enough support from the Senate hence, it was later excluded. The act further strengthened when it received legislation amendment in the Sedition Act of 1918.

Aftermath of The Espionage Act of 1917

► Records suggest that around 900 people were imprisoned under this act including public figures like Eugene V. Debs, Philip Randolph, and Emma Goldman. Eugene V. Debs was an influential orator and public figure, he was also an American union leader, and one of the founding members of the Industrial Workers of the World (IWW or the Wobblies).

He was nominated five times as the candidate of the Socialist Party of America for the post of President of the United States. His famous speech against the Wilson administration on June 16, in Canton, Ohio, urging resistance to the military draft of World War I, led to his arrest on June 30. He was charged with ten counts of sedition.

► Around 450 were imprisoned as they opposed the participation of the U.S. in World War I. In 1918, a socialist journal known as ‘The Masses’ was forced to stop publication as it was accused of causing widespread disparities against the government through its articles and cartoons.

► Under this act, around 245 people were deported to Russia by the then Attorney General, A. Mitchell Palmer, and his assistant, J. Edgar Hoover, accusing them of treason and supporting left-wing politics.

► This continued during the Red Scare of 1919-1920 and around 1,500 people were arrested under this act for disloyalty towards the government.

This Act caused a lot of mayhem in the political system during the World War I, but after the war ended, prosecutions under this act ceased. During World War II, criminal prosecutions under this act were mostly limited to outright antagonist acts of treason. At present, the law is referred to only under extreme circumstances.


The Espionage Act - June 15, 1917

Be it enacted, That section three of the Act . . . approved June 15, 1917, be . . amended so as to read as follows:

SEC. 3. Whoever, when the United States is at war, shall wilfully make or convey false reports or false statements with intent to interfere with the operation or success of the military or naval forces of the United States, or to promote the success of its enemies, or shall willfully make or convey false reports, or false statements, or say or do anything except by way of bona fide and not disloyal advice to an investor . . . with intent to obstruct the sale by the United States of bonds . . . or the making of loans by or to the United States, or whoever, when the United States is at war, shall wilfully cause . . . or incite . . . insubordination, disloyalty, mutiny, or refusal of duty. in the military or naval forces of the United States, or shall wilfully obstruct . . . the recruiting or enlistment service of the United States, and whoever, when the United States is at war, shall wilfully utter, print, write, or publish any disloyal, profane, scurrilous, or abusive language about the form of government of the United States, or the Constitution of the United States, or the military or naval forces of the United States, or the flag . . . or the uniform of the Army or Navy of the United States, or any language intended to bring the form of government . . . or the Constitution . . . or the military or naval forces . . . or the flag . . . of the United States into contempt, scorn, contumely, or disrepute . . . or shall wilfully display the flag of any foreign enemy, or shall wilfully . . . urge, incite, or advocate any curtailment of production in this country of any thing or things . . . necessary or essential to the prosecution of the war . . . and whoever shall wilfully advocate, teach, defend, or suggest the doing of any of the acts or things in this section enumerated and whoever shall by word or act support or favor the cause of any country with which the United States is at war or by word or act oppose the cause of the United States therein, shall be punished by a fine of not more than $10,000 or imprisonment for not more than twenty years, or both.


Espionage Act [June 15, 1917] - History

The Espionage Act of 1917, passed on June 15, 1917, might very well be considered one of the most controversial laws ever passed in American history. Critics note that its harsh tone is an affront to the Constitution of the United States. Others may state that the law was necessary to safeguard the nation during the largest war humanity had ever seen at that point of time in history.

World War I and Its Impact on the United States

When Woodrow Wilson campaigned for the presidency, he ran on the platform that the United States would stay out of the affairs of Europe. In particular, the United States would not get involved with The Great War which would later become commonly known as World War I.

Several events eventually led to the United State becoming involved in World War I. A German U-boat had sunk the luxury liner Lusitania killing 128 Americans. There was also the interception of the Zimmerman letter which revealed Germany was trying to coax Mexico into invading the United States. There was also great fear that if Great Britain collapsed in the aftermath of a German victory, the economy of the United States would also collapse since Britain was indebted to the US for huge loan sums.

Woodrow Wilson won his reelection largely because he was able to keep the United States from entering World War I. So, when Wilson did find it necessary in his second term to enter the war, there were large segments of the population that do not support the war effort. In some cases, the government felt many of these groups were taking steps to undermine the war effort. To help facilitate the winning of the war, Congress would pass the Espionage Act of 1917.

The Controversial Provisions of the Act

The Espionage Act put into law a penalty of up to 20 years imprisonment for anyone convicted of interfering with military recruitment. The law also presented the penalty of levying fines of up to $10,000 for those convicted. The law also gave additional powers to the post office. Specifically, the law allowed the Postmaster General to confiscate any mail that might be deemed seditious or treasonable.

Domestic Issues of Concern

There were quite a number of concerns the Wilson administration had about certain groups that were in opposition to the war. Public criticism of the war was definitely a major concern of the government. Since a significant number of troops would be needed to carry out the war effort, a draft was imposed. Among the concerns the government had was the notion that constant criticism would make recruitment and even conscription difficult.

The government was also growing somewhat uneasy over the antiwar activities of various labor groups. The Industrial Workers of the World (The IWW aka The Wobblies) were among the most vocal of critics and their membership was significant. Among the reasons why the IWW was critical of the war was it was sympathetic to the global labor movement. Some of the nations that United States was opposing in the war had large labor movements.

Concerns Over Treason

While issues of free speech were at the core of many challenges to the law, the bulk of the law dealt with outright hostile acts of treason.

The Espionage Act Becomes Law

Although the act was signed into law in 1917, the origins of it date back to December of 1915. Wilson tried to sell the public and Congress on the law at this time, but there was not a huge groundswell for its passage. As the events of World War I intensified, the desire on Congress’ part to pass the law increased.

There were numerous laws already on the books that covered espionage and sedition. This new law simply reaffirmed many of them. The law was passed on June 15, 1917 and it was heavily based on and built upon the Defense Secrets Act of 1911. At the crux of this law were severe penalties for those that illegally procured secrets related to national defense. With the Espionage Act, the penalties for these violations become much more severe. Depending upon the circumstances, a person convicted of treason under this act could face the death penalty.

Legal Challenges to the Espionage Act

The common legal challenges to the Espionage Act of 1917 were not rooted in issues surrounding high treason. Rather, they centered on issues related to free speech and civil liberties. Earlier versions of the bill included the ability to censor the press if needed. Wilson was adamant about this provision, but it did not garner enough support in the Senate. The version of the bill that Wilson eventually signed did not include any powers to censor the press.

In 1918, the law was made even stronger when its amending legislation was adopted via the Sedition Act of 1918. Again, this was a law that was passed due to the grave threat the US faced in World War One.

There were almost immediate challenges to the law in the court. In 1919, the Supreme Court eventually ruled in Schenck v. United States that the law was constitutional because it dealt with clear and present dangers to the United States. Hence, it was not trying to suppress free speech in broad and general terms as it related to citizens and the press.

There were quite a number of highly publicized convictions under the law. In 1916, socialist leader Eugene V. Debs would be convicted under the act and sentenced to 20 years in prison. (His sentence was commuted after five years) The motion picture The Spirit of 󈨐 was confiscated by the government due to the belief that it was undermining the war effort. The film’s producer, Robert Goldstein, was sentenced to three years in prison for his involvement in the making of the film.

World War I Comes to a Close

After the end of World War I, prosecutions under the Espionage Act of 1917 were rare. Even in World War II, prosecutions were mostly limited to outright acts of hostility and treason. The law remains on the books today and is used sparingly and only in the most serious of circumstances.


Court rules wartime danger justifies restrictions

In 1917 the socialist Charles T. Schenck was charged with violating the Espionage Act after circulating a flyer opposing the draft. In Schenck v. United States (1919), the Supreme Court upheld the act&rsquos constitutionality. Writing for the majority, Justice Oliver Wendell Holmes Jr. held that the danger posed during wartime justified the act&rsquos restriction on First Amendment rights to freedom of speech.

Although Congress repealed the Sedition Act of 1918 in 1921, many portions of the Espionage Act of 1917 are still law.

Daniel Ellsberg, a former defense analyst who leaked the famous Pentagon Papers to the New York Times and other newspapers, faced charges under the Espionage Act, and went to trial in Los Angeles in 1973. The judge eventually dismissed charges against him and his colleague Anthony Russo.

Former CIA analyst Edward Snowden was charged with violating the Epionage Act of 1917 after he leaked classified documents related to the National Security Agency's widespread surveillance program in 2013. In this photo, Snowden speaks with Chris Anderson and Tim Berners Lee on a telepresence robot, beaming in from a secret location in Russia. (Image via Wikimedia Commons, CC BY 2.0)


Espionage Act of 1917

Congress responded to a growing fear that public criticism of the war effort would make it difficult to conscript the needed manpower for American participation. Also contributing to widespread unease were the actions of labor groups, especially the Industrial Workers of the World (IWW), who proclaimed their sympathy for laborers through the world, including those in Russia. The Espionage Act, passed in June 1917, provided penalties of 20 years imprisonment and fines up to $10,000 for those convicted of interfering with military recruitment. The law also authorized the Postmaster General to remove treasonable or seditious material from the mail. This measure was quickly challenged in the courts. In a controversial Supreme Court decision, Schenck v. United States (1919), the law was upheld. Congress had the power to enact legislation that under ordinary circumstances might not be acceptable, when faced by “a clear and present danger.” The terms of the Espionage Act were strengthened by the enactment of amending legislation, the Sedition Act of 1918. State and local Committees of Public Safety, although they often did effective work, also at times exceeded legitimate object and left a memory of unjust repression in some communities. No formal censorship existed but the result was the same, through pressure and the mere threat of prosecution under the Espionage Act of 1917.


JUDICIAL INTERPRETATION OF THE ACT

Most judges and juries applied the act expansively. Judges routinely instructed juries that they could infer unlawful intent from the likely effects of the defendant's words. These judges often instructed juries that they could convict on the basis of the "bad tendency" of the defendant's language, whether or not prosecutors had shown actual bad effects, or that any soldiers or possible recruits had been exposed to the defendant's words. So instructed, juries usually convicted. A handful of judges construed the act narrowly in an effort to reconcile the act with First Amendment free-speech values. For example, the Eighth Circuit Court of Appeals ordered a new trial for Rose Pastor Stokes.

Most notably, in Masses Publishing Co. v. Patten (1917), the publisher of the journal The Masses sought an injunction to prevent the seizure of the August issue as nonmailable because of its antiwar articles and cartoons. Judge Learned Hand granted that the material might undermine obedience in the military and, through its praise of jailed conscription opponents, might tend to obstruct recruitment. Nevertheless, he granted the injunction, because he concluded that Congress must have intended to prohibit only speech that advocated insubordination or resistance to enlistment. By construing the statute this way, he avoided deciding whether the statute unconstitutionally infringed on free speech. The United States Court of Appeals for the Second Circuit rejected Judge Hand's narrow interpretation of the act and reversed his decision.

Like the Second Circuit, the United States Supreme Court rejected a narrow reading of the act. In three cases decided in 1919, Debs v. United States,Frohwerk v. United States, and Schenck v. United States, the Court upheld expansive application of the act and rejected a First Amendment challenge. Writing for a unanimous Court in each case, Justice Oliver Wendell Holmes, Jr., adopted the lower courts' approach of looking to the bad tendency of the language under the circumstances and of inferring intent from that bad tendency. Schenck contains Holmes's famous statement that the First Amendment "would not protect a man in falsely shouting fire in a theatre and causing a panic." Rejecting the First Amendment argument, Holmes continued:

The question . is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured.

In a series of famous dissents in cases involving the prosecution of political radicals that arose mostly in the 1920s, Justice Holmes and Justice Louis D. Brandeis invoked the "clear and present danger" test, but they interpreted it in a fashion that was far more protective of free speech, than to Holmes's use of the concept intent in the Schenck ruling. While Holmes asserted that these dissents with the earlier Espionage Act rulings, both in tone and application they were more protective of free speech. Importantly, Holmes and Brandeis required a much closer and immediate link between the speech in question and the danger that the government sought to avert than the Court had in the Espionage Act cases and in the subsequent prosecutions that prompted their dissents. With time, their dissenting approach prevailed, triumphing finally under the Warren Court.


Espionage and Sedition Acts of World War I

Espionage and Sedition Acts of World War I (1917, 1918) were the first forays since 1798 into federal regulation of First Amendment rights.These criminalizations of certain forms of expression, belief, and association resulted in the prosecution of over 2,000 cases, but in reaction they also produced a movement to protect the civil liberties of all Americans.

The Espionage Act (15 June 1917), enacted quickly by Congress following the U.S. declaration of war on Germany, authorized federal officials to make summary arrests of people whose opinions “threatened national security.” The measure prohibited willfully making false reports with intent to interfere with the success of the military or naval forces, inciting insubordination, disloyalty, or mutiny in the military, and obstructing recruitment or the enlistment service of the United States. Further sections authorized the Postmaster General to ban from the mails material advocating resistance to any law of the United States. This gave Post Office officials in the Wilson administration virtual dictatorial control over circulation of the nation's subsidiary press.

Realizing that the vagueness of the Espionage Act opened up opportunities for broad repression by government officials, as well as for mob violence and vigilante action, Congress augmented it with the Sedition Act on 16 May 1918. This set forth eight new criminal offenses, including uttering, printing, writing, or publishing any disloyal, profane, scurrilous, or abusive language intended to cause contempt, scorn, contumely, or disrespect for the U.S. government or the Constitution.

Harry N. Scheiber , The Wilson Administration and Civil Liberties , 1960.
Paul L. Murphy , World War I and the Origin of Civil Liberties in the United States , 1979.

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