Espionage Act (1917) and Sedition Act (1918)

Robert N. Strassfeld

On the evening of April 2, 1917, President Woodrow Wilson addressed a joint session of Congress seeking a declaration of war against Germany and its allies. Later that night, Representative Edwin Webb, of North Carolina, and Senator Charles Culberson, of Texas, introduced bills in the House of Representatives and the Senate to deal with espionage and treason. On June 15, 1917, after much debate and some alteration, Congress enacted these bills into law as the Espionage Act (40 Stat. 217).

Even before America's entry into war, the Wilson administration had sought such legislation. Despite official neutrality, beginning in July 1915, the United States embarked on a program of military preparedness and financial and material support of Great Britain and its allies. As U.S. foreign policy shifted toward support of Great Britain, the administration became increasingly concerned about criticism of its policies and about pro-German propaganda. Democrats and Republicans both appealed to popular anxiety about the loyalty of so-called "hyphenate Americans," especially German-American and Irish-American immigrants. On December 7, 1915, congressmen and senators reacted enthusiastically when Wilson proclaimed in his Third Annual Message to Congress: "There are citizens of the United States ... born under other flags but welcomed by our generous naturalization laws to the full freedom and opportunity of America, who have poured the poison of disloyalty into the very arteries of our national life" (Shaw 1924, p. 151). Wilson added that such advocates of "disloyalty, and anarchy must be crushed out."

Twice before April 1917, Attorney General Thomas W. Gregory had proposed legislation on behalf of the Wilson administration that would punish espionage and curtail disloyal speech. Congress declined to enact these bills in June 1916 and during the winter of 1917. The Webb-Culberson legislation closely resembled these failed bills.

FEATURES OF THE ACT

The Espionage Act dealt with a wide range of issues, from criminalizing various acts of espionage to protecting shipping. Mostly it was uncontroversial. The act is remembered, however, for those provisions that affected civil liberties.

First, Title 1, section 3, of the act made it a crime, punishable by up to twenty years' imprisonment and a $10,000 fine, to "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" and to "cause or attempt to cause insubordination, disloyalty, mutiny, or refusal of duty in the military or naval forces ... or ... willfully obstruct the recruiting or enlistment service of the United States."

Second, title 12 empowered the postmaster general to declare any material that violated any provision of the Espionage Act or that urged "treason, insurrection, or forcible resistance to any law of the United States" unmailable. Use of the mails to transmit such materials was punishable by imprisonment and a fine.

Finally, as originally introduced, the bill gave the president the power to censor publication of material that he deemed potentially useful to the enemy. The censorship provision faced stiff opposition from the press and from across the political spectrum. Opponents included Republicans from the progressive wing of the party, such as Senators William Borah and Hiram Johnson, as well as Wilson's constant critic from the party's conservative wing, Senator Henry Cabot Lodge. Despite a direct appeal by Wilson to Congress to enact this provision, Congress removed it from the bill.

THE SEDITION ACT

At the urging of Attorney General Gregory, Congress enacted the Sedition Act (40 Stat. 553), which amended the Espionage Act, on May 16, 1918. Most notably, it added a variety of prohibited acts to Title 1, section 3, including writing or uttering:

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 of the United States, or the uniform of the Army or Navy of the United States, or any language intended to bring [any of the above] into contempt, scorn, contumely, or disrepute.

The Sedition Act also amended the Espionage Act to enhance the postmaster general's powers.

PROSECUTIONS UNDER THE ACT

During the war not a single person was convicted of spying or sabotage under the Espionage Act. However, federal prosecutors used the act to bring over 2,000 cases, mostly under section 3, and at least 1,055 convictions resulted. Representatives of the American political Left were especially targeted. The government prosecuted leaders and members of the American Socialist Party, including its leader and perennial presidential candidate, Eugene V. Debs. They also targeted the leadership of the militant left-wing Industrial Workers of the World (IWW), then the largest industrial union in the United States. Both groups had publicly opposed U.S. entry into the war.

Some prosecutions involved antiwar or anti-conscription speech that was at least partly directed at soldiers or potential conscripts. But much more innocuous speech that had little chance of causing disloyalty among the troops also prompted prosecution. In United States v. Nagler (1918), the defendant was convicted of publicly stating that the YMCA and the Red Cross are a "bunch of grafters." In another case, Stokes v. United States (1920), Rose Pastor Stokes, even though she rejected the Socialist Party's stand against the war, was sentenced to ten years' imprisonment for writing in a newspaper, "I am for the people, while the government is for the profiteers." And in a case resplendent with irony, United States v. Motion Picture Film "The Spirit of '76" (1917), a federal court upheld government seizure of a film about the Revolutionary War because it depicted atrocities committed by British soldiers and might therefore undermine support for an ally. The producer received a ten-year sentence.

Attorney General Gregory sent mixed messages about aggressive use of the Espionage Act. Although he cautioned against interference with civil liberties, he also directed the prosecution of Debs and orchestrated raids on IWW offices. He gave federal prosecutors broad discretion, which resulted in a varied pattern of prosecution. Nearly half of the prosecutions occurred in just thirteen of eighty-seven federal districts, mostly those located in Western states where the IWW was most active. For instance, there were five prosecutions in Massachusetts, whose population was over 3 million people. At the same time, in North Dakota, which had less than one-sixth of Massachusetts' population, 103 people were prosecuted.

Unlike Attorney General Gregory, the next postmaster general, Albert S. Burleson, had few reservations about using the Espionage Act to its fullest repressive potential. Within a month of its enactment, Burleson had censored fifteen publications. In addition to the radical press, he censored journals that criticized the administration's method of financing the war or British policy in Ireland. Burleson also revoked the second-class mailing privileges of such journals as The Masses, a radical literary and political journal, and the Milwaukee Leader, a socialist newspaper. Burleson reasoned that the interruption of their circulation caused by his seizure of a particular issue meant they were no longer periodicals entitled to the mailing privilege and the low postal rates.

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.

CIVIL LIBERTIES

Although Congress rejected Wilson's request for a peacetime Sedition Act, the repression of the Left continued in the postwar years in a series of raids, prosecutions (sometimes under state acts directed against the IWW), and deportations. This period in American history, when repressive actions were taken against allegedly disloyal citizens, is known as the "Red Scare" (red being the color associated with communism). The excessive response to supposed sedition during the war and postwar years also prompted increased concern about civil liberties. Both the American Civil Liberties Union, founded in 1920, and the Holmes and Brandeis dissents, which led eventually to a broader understanding of First Amendment rights, were reactions to this experience. Nonetheless, the Espionage Act, in somewhat amended form, remains a part of federal law.

See also: Alien and Sedition Acts of 1798; Communist Control Act of 1954; USA Patriot Act.

BIBLIOGRAPHY

Chafee, Zechariah. Free Speech in the United States. Cambridge: Harvard University Press, 1941.

Kennedy, David. Over Here: The First World War and American Society. New York: Oxford University Press, 1980.

Murphy, Paul L. World War I and the Origin of Civil Liberties in the United States. New York: Norton, 1979.

Peterson, H. C., and Gilbert C. Fite. Opponents of War, 1917–1918. Madison: University of Wisconsin Press, 1957.

Preston, William. Aliens and Dissenters: Federal Suppression of Radicals, 1903–1933. Cambridge, MA: Harvard University Press, 1963.

Rabban, David M. Free Speech in the Forgotten Years. New York: Cambridge University Press, 1997.

Scheiber, Harry N. The Wilson Administration and Civil Liberties, 1917–21. Ithaca, NY: Cornell University Press, 1960.

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.

Espionage Act of 1917

█ ADRIENNE WILMOTH LERNER

The Espionage Act, passed in 1917 after the United States entered the World War I, prohibited the disclosure of government and industrial information regarding national defense. The act also criminalized refusal to perform military service if conscripted.

In 1914, war began in Europe. The United States declared neutrality at the beginning of the war, attempting to avoid war in Europe and unrest within its own borders. Forging alliances was difficult not only because the United States' relatively small military at the time, but also because of its large immigrant population. In the three decades preceding World War I, several million people immigrated to America, many from various nations involved in the European conflict. Making alliances with Britain and France promised to upset scores of German and Austrian sympathizers, and vice versa. Though some elements of the population were divided on the opinion of European alliances, the government favored allegiance with Britain and France. While America maintained its neutrality until 1917, it became a major supplier of money, supplies, and munitions to British and French forces. American ships transported contraband weapons across the Atlantic and between European ports. Intelligence agents and merchant ships gathered reports on German vessels and informed the British Navy of fleet activity.

In retaliation for what was viewed as acts of war and signs of allegiance with their enemies, the German government sent saboteurs to destroy American factories, warehouses, and ships that produced or held munitions bound for the western front. Several high-profile terrorist acts, most especially the demolition of Black Tom Pier near Ellis Island, New York, helped to foster a genuine concern, and to some degree an hysteria, about the danger of spies and saboteurs. When America formally joined the Allies' fight against Germany and Austria-Hungary in 1917, the government enacted tough legislation intended to aid the war effort.

The Espionage Act was one of the first pieces of wartime legislation passed. It had overwhelming favor in the government, but was more controversial to the public, especially among political radicals opposed to war, conscription, and interference with civil liberties. The act had provisions for steep penalties, including a $10,000 fine and 20 years imprisonment. While the act was rarely questioned as a means of controlling enemy espionage, its broad application to silence anti-war protesters and left-wing sympathizers drew criticism. Socialist advocate Eugene V. Debs was sentenced to ten years in prison for claiming in a speech that the Espionage Act itself was unconstitutional. Over 450 conscientious objectors were jailed under the provisions of the act for refusing military service.

Congress amended the Espionage Act in 1918 with the passage of the Sedition Act. The act further extended prohibition on the expression of anti-war and unpatriotic sentiments. It imposed several penalties on those convicted of "disloyal, profane, scurrilous, or abusive language" against the government, its actions, or its symbols.

While the Espionage Act was intended as wartime legislation, it continued to be invoked following the end of the war. When the Bolshevik Revolution toppled the Russian monarchy in 1917, it sparked a widespread fear of communist revolts in other nations. The period, which lasted from 1919 to 1920, became known in America as the Red Scare. During the Red Scare, the attorney general, A. Mitchell Palmer, and his assistant, John Edgar Hoover, set up a special task force to prosecute radicals under the Espionage and Sedition Acts. Nearly 2,000 people were tried and imprisoned, but Palmer's increasing zeal for his cause began to draw criticism in 1920. Palmer claimed that communist agents had infiltrated American organizations and were planning to overthrow the government on May 1, 1920. When his predicted revolution failed to materialize, many turned away from his cause. Palmer and Hoover ordered the deportation of some people convicted during the Red Scare; however, most were simply jailed in the United States. Most of the prisoners sentenced during the Red Scare were freed in 1920.

█ FURTHER READING:

BOOKS:

Kennedy, David M. Over Here: The First World War and American Society. New York: Oxford University Press, 1986.

SEE ALSO

World War I

ESPIONAGE ACT

ESPIONAGE ACT, 1917. Shortly after the United States entered World War I in April 1917, the House Committee on the Judiciary conducted public hearings regarding proposals to limit debate on administration policies. The government of President Woodrow Wilson had already sought to silence critics through proclamations restricting the movement of enemy aliens, the establishment of a loyalty-security program, and the setting up of the Committee on Public Information for censorship purposes. Nevertheless, Department of Justice attorneys desired additional means to restrict individual conduct and quash "political agitation" during wartime. Heated debate over the proposed Espionage Act occurred in Congress during the spring of 1917. Opposition arose regarding possible prior restraint, the affording of sweeping legislative powers to the executive branch, and the treatment of critical perspectives as "seditious" or "treasonable." At the same time few expressed concerns over the part of the bill that authorized the U.S. Post Office Department to refuse to deliver radical labor or socialist publications.

On 15 June 1917 Congress passed the Espionage Act. A provision to grant the government broad powers to censor newspapers was omitted, but the legislation remained sweeping nevertheless. Title I provided a $10, 000 fine and imprisonment for up to twenty years for those who "willfully" delivered "false reports or false statements" intended to impede U.S. military operations, engender disloyalty within U.S. military ranks, or obstruct recruitment or enlistment into the U.S. military. Title XII, which allowed for a $5, 000 fine and a five-year prison term, authorized the postmaster general to refuse to deliver any material "advocating or urging treason, insurrection, or forcible resistance to any law of the United States." On 16 May 1918 Congress amended the Espionage Act through the passage of the Sedition Act; that measure targeted those who did "willfully utter, print, write, or publish any disloyal, profane, scurrilous, or abusive" language concerning the American government, flag, Constitution, or military. The federal government prosecuted over two thousand cases involving purported violations of the Espionage or Sedition Acts, with more than a thousand convictions obtained. Among the most celebrated individuals indicted under the Espionage Act was Socialist Party leader Eugene V. Debs; and the postmaster general declared The Masses, a leading publication of the World War I–era American Left, "nonmailable."

In 1919 the United States Supreme Court upheld convictions in a series of cases involving the Espionage and Sedition Acts. In the process Justices Oliver Wendell Holmes Jr. and Louis D. Brandeis began to insist that "clear and present danger" must exist to allow for a restriction of First Amendment rights. In 1921 the Sedition Act was rescinded, while the Espionage Act was amended once more with heightened penalties in 1940 after World War II had begun in Europe and Asia. The Espionage Act remained in force in the early 2000s.

BIBLIOGRAPHY

Goldstein, Robert Justin. Political Repression in Modern America: 1870 to the Present. New York: Schenkman, 1978.

Murphy, Paul L. World War I and the Origin of Civil Liberties in the United States. New York: Norton, 1979.

Rabban, David M. Free Speech in Its Forgotten Years. Cambridge, U.K.: Cambridge University Press, 1997.

Robert C.Cottrell

See alsoSedition Acts .