Espionage Act of 1917

Espionage Act of 1917

One of the most controversial laws ever passed in the United States, the Espionage Act of 1917 (ch. 30, tit. I § 3, 40 Stat. 217, 219), and an amendment to it passed in 1918 sometimes referred to as the Sedition Act, were an attempt to deal with the climate created in the country by World War I. While most of the Espionage Act was straightforward and non-controversial, parts of this legislation curtailed Freedom of Speech in such a way as to draw an outcry from civil libertarians. It resulted in several important U.S. Supreme Court decisions regarding freedom of speech that continue to be studied.

With World War I raging in 1917, the administration of President woodrow wilson decided that there needed to be a law protecting the United States against "the insidious methods of internal hostile activities." While the United States had Espionage laws already on the books, it had not had a law against seditious expression since the Alien and Sedition Acts of 1798 expired. But Wilson and his cabinet had begun to express concern about what Attorney General thomas gregory referred to as "warfare by propaganda."

Thus the Wilson administration proposed and Congress passed the "Espionage Act of 1917." Much of the act simply served to supersede existing espionage laws. Sections of the act covered the following: vessels in ports of the United States, interference with foreign commerce by violent means, seizure of arms and other articles intended for export, enforcement of neutrality, passports, counterfeiting government seals, and search warrants.

The part of the act dealing specifically with espionage contained standard clauses criminalizing "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 obtaining such things as code books, signal books, sketches, photographs, photographic negatives, and blue prints with the intention of passing them on to the enemy. While more comprehensive, these passages were not much different than what had been in previous laws against spying and espionage.

But the Espionage Act went further. It deemed a criminal anyone who, "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." The act said such individuals would "be punished by a fine of not more than $10,000 or imprisonment for not more than twenty years or both." The act also declared that any mailing that violated the above provision of the act was illegal, and it also banned any mailings advocating or urging Treason, insurrection, or forcible resistance to any law of the United States. Finally, the act declared it unlawful for any person in time of war to publish any information that the president, in his judgment, declared to be "of such character that it is or might be useful to the enemy."

The 1918 amendment to the act, also called the Sedition Act, went further. The act made it illegal to do the following:

• "To 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";
• To "cause … or incite … insubordination, disloyalty, mutiny, or refusal of duty, in the military or naval forces of the United States";
• To "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";
• To "willfully display the flag of a foreign enemy";
• To "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."

The passage of the Espionage Act and the 1918 amendment engineered much argument and disagreement. One congressional representative, Martin Madden of Illinois, noted that "while we are fighting to establish the democracy of the world, we ought not to do the thing that will establish autocracy in America." Despite this sort of objection, the act and its amendment passed by large majorities in both houses.

More surprisingly, the act was upheld by the Supreme Court on the occasions when it reached the high court. In three cases Schenck v. United States, 249 U.S. 47, 39 S.Ct. 247, 63 L.Ed. 470, (U.S.Pa 1919); Frohwerk v. United States, 249 U.S. 204, 39 S.Ct. 249, 63 L.Ed. 561 (U.S.Mo. 1919); and Debs v. United States, 249 U.S. 211, 39 S.Ct. 252, 63 L.Ed. 566, (U.S.Ohio 1919), the Supreme Court unanimously upheld the convictions under the Espionage Act. Another case, Abrams v. United States, 250 U.S. 616, 40 S.Ct. 17, 63 L.Ed. 1173, (U.S.N.Y. 1919), which was brought under the 1918 sedition amendment to the act, also resulted in the Supreme Court upholding a conviction. Abrams is chiefly remembered for a famous dissent by Justice Oliver Wendell Holmes, who clarified his clear and present danger test when he wrote, "Only the emergency that makes it immediately dangerous to leave the correction of evil counsels to time warrants making any exception to the sweeping command, 'Congress shall make no law abridging the freedom of speech.'"

The Espionage Act was eventually superseded by a less onerous Espionage Act passed after World War II. However, remnants of the act, particularly the non-controversial parts, continue to exist in American law as of 2003 (e.g. 18 U.S.C.A. § 793). The act is still cited by many civil libertarians as a law that went too far in its restrictions on freedom of speech.

Further readings

Fellmeth, Aaron Xavier. 1996–97. "Divorce Waiting to Happen: Franklin Roosevelt and the Law of Neutrality, 1935–1941." Buffalo Journal of International Law 3 (winter).

Rabban, David M. 1983. "The Emergence of Modern First Amendment Doctrine." University of Chicago Law Review 50 (fall).

Stone, Geoffrey R. 2003. "Judge Learned Hand and the Espionage Act of 1917: A Mystery Unraveled." University of Chicago Law Review 70 (winter).

Cross-references

Debs, Eugene Victor; First Amendment.