Espionage Act

The Espionage Act of 1917 is one of the most controversial laws that the United States ever passed. It was initially created to prohibit United States citizens from supporting enemies of their country while the U.S. was at war. It was also meant to stop anyone who could potentially get in the way of military operations, including recruitment, during wartime. However, the Act ultimately placed unforgivable restrictions on citizens’ freedom of speech. To explore this concept, consider the following Espionage Act definition.

Definition of the Espionage Act

Noun

1. A law enacted to prevent American citizens from interrupting military operations or supporting the country’s enemies during wartime.

Origin

1917    Congressional legislation

What is the Espionage Act

The Espionage Act is a law that was created in 1917, shortly after the United States joined World War I. The Act was created to protect the United States by prohibiting its citizens from supporting the nation’s enemies during wartime. It also made it illegal for citizens to obstruct military operations during wartime, including recruitment. For those who chose to participate in these activities anyway, harsh penalties were permitted, including the death penalty.

These penalties made the Espionage Act significantly more severe than the Defense Secrets Act of 1911, which inspired the Espionage Act. The Defense Secrets Act was mainly concerned with keeping citizens from obtaining or handing over any information pertaining to the United States’ national defenses to anyone who was not “entitled to have it.”

Examples of Espionage Act-related crimes and their penalties included:

• Providing Information – Handing over information that would either interfere with the United States’ military, or promote the success of the country’s enemies. Anyone caught doing either of these things could be punished by death, or by a maximum prison sentence of 30 years. In some cases, both penalties could be handed down.
• Communicating False Information – Attempting to interfere with military operations, or promoting the success of the country’s enemies by communicating false statements during wartime. These statements could be any statements that could be translated to encourage insubordination, mutiny, disloyalty, or refusal of duty. This crime was punishable by a fee of up to $10,000, a maximum prison sentence of 20 years, or both.

The Postmaster General was permitted under the Act to destroy or otherwise refuse any mail publications that he believed to be in violation of the Act. Knowing this, it is understandable how the Act could have trampled the rights of freedom of speech and freedom of the press in the United States.

Another roadblock that the Act created was its provision that no naval vessels equipped for combat could be shipped out to any nation that is engaged in a war in which the United States is a neutral party. This was all well and good until President Franklin D. Roosevelt wanted to send military aid to Great Britain right before the U.S. joined World War II, and the Act barred him from doing so. While punishments were handed out frequently during World War I to those accused of violating the Act, the number of prosecutions actually eased up during World War II.

Sedition and Espionage Acts

The Sedition Act was created less than a year after the Espionage Act, being enacted in May of 1918. The Sedition Act was created as an amendment to the Espionage Act, and this is where things got really controversial. The Sedition Act made it a crime to write or talk, in a critical manner, about the United States’ involvement in the war. Simply put, Americans were not allowed to criticize the United States for its involvement in World War I, nor were they permitted to criticize any of the decisions the government made insofar as the war was concerned.

While the Sedition and Espionage Acts are commonly referred to together, the Sedition Act especially singled out immigrants living in the United States at the time, who were opposed to the war, the draft, and the trampling of their freedom of speech on these issues.

The Sedition Act made the Espionage Act more specific by laying out exactly what people could get in trouble for. Examples of Espionage Act-related crimes that were made clearer by the Sedition Act include using profane or disloyal language to criticize things like the Constitution, the American flag, the military, their uniforms, or the government as a whole. The government was also given the freedom to punish people for engaging in a multitude of speeches and behaviors, such as displaying a German flag, or giving a speech that could be interpreted as support for the enemy.

Anyone who was convicted of violating these laws could be fined up to $10,000, and could be imprisoned for a maximum of 20 years.

The Postmaster General’s authority was made clearer by the Sedition Act as well, as it gave him the authority to ban the mailing of any letters, newspapers, pamphlets, packages, or other materials that he believed to be in opposition to the war effort. The result was that 75 newspapers – including German-American, pacifist, and American Socialist newspapers – either lost their mailing privileges entirely, or were pressured to refrain from printing anything else about the war.

Interestingly, no one was convicted on charges of spying or sabotage during World War I under the Espionage Act. However, over 2,000 people were arrested for sedition during this period, and 1,000 of them (many of whom were immigrants) were ultimately convicted. The Supreme Court was on board with the Espionage and Sedition Acts, holding that both were constitutional, and that the government was permitted to punish speech that could create a “clear and present danger” to the country.

While the Espionage Act was intended to only be in effect during wartime, in practice it continued to be invoked after through World War II, and beyond. The Sedition Act was ultimately repealed in 1921, but significant parts of the Espionage Act are still ingrained in United States law even today.

Sedition and Espionage Act Examples

Inciting Through the U.S. Mail

Perhaps the best-known example of the Espionage Act being heard at the Supreme Court level occurred in 1919. Charles Schenck was the general secretary of the Socialist Party of America at that time. The socialists believed that the war was started by, and would only benefit, the wealthy. They also believed that the war would ultimately cause the deaths and suffering of the thousands of poor and middle-class American soldiers who were recruited to fight the war in Europe. Not only did the Party’s officials oppose the war, but they also encouraged American workers to join them in their opposition.

Schenck participated in several antiwar activities that directly violated the Espionage Act. One of these activities was the mailing of approximately 15,000 pamphlets that urged draftees and soldiers to peacefully resist the draft. The pamphlet suggested that the draft was motivated by greed and was evil in nature. Schenck was arrested on charges of conspiracy to violate the Espionage Act by attempting “to cause insubordination” within the United States’ military and naval forces. He was also accused of disturbing the draft and obstructing recruitment efforts.

Schenck argued, ineffectually, that the Espionage Act violated his First Amendment right to free speech. Schenck was convicted by the trial court and sentenced to prison for violating the Espionage Act. He appealed his case to the U.S. Supreme Court, where the question became whether or not Schenck’s actions (including his speech) were protected by the free speech clause contained in the First Amendment of the United States Constitution.

The Court decided unanimously against Schenck, ruling that his speech was not protected in this situation. The Court held that certain types of speech that are tolerated during peacetime may be punished during wartime. In the Court’s unanimous decision, Supreme Court Justice Oliver W. Holmes, Jr. stated specifically:

“The question in every case 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.” [Emphasis added]

Labor Speech Sedition

Another famous activist who was arrested during this period was Eugene V. Debs, who routinely made speeches against President Woodrow Wilson’s administration and the war. Wilson called Debs a “traitor to his country.” In June of 1918, Debs was arrested after making a speech in Canton, Ohio, which urged citizens to resist the draft of World War I. He was charged with ten counts of sedition.

In an unusual move, Debs was granted the ability to address the Court in his own defense, as no witnesses were called to testify. He spoke to the trial court for two hours, but was ultimately found guilty and sentenced to 10 years in prison. At his sentencing hearing, Debs made yet another speech, which is recognized as a classic historical speech. Below is an excerpt from this speech:

“Your honor, I ask no mercy, I plead for no immunity. I realize that finally the right must prevail. I never more fully comprehended than now the great struggle between the powers of greed on the one hand and upon the other the rising hosts of freedom. I can see the dawn of a better day of humanity. The people are awakening. In due course of time they will come into their own.”

Debs appealed the decision, and the case ultimately made its way to the U.S. Supreme Court where, once again, the conviction was upheld.

Related Legal Terms and Issues

• Espionage – The use of spies by a government to discover the military and political secrets of other nations. Also, the act of spying to acquire secrets, plans, or technical knowledge.
• Sedition – Conduct or speech meant to incite a riot against the ruling body of a country.