Espionage Acts

Prohibit not only spying but also a variety of other activities, including certain kinds of expression. Consequently, they have often been at issue in First Amendment litigation before the Supreme Court. Congress enacted the first such law during World War I, amid concern about spies and the subversive activities of foreign agents. The Espionage Act of 15 June 1917 was an omnibus measure that only punished the unauthorized obtaining, receiving, and communicating of national defense information but also contained provisions dealing with foreign ships in American ports, the seizure of arms intended for export, passports, search warrants, and even the counterfeiting of government seals. One section made it a crime, whenever the United States was at war, to make or convey false reports with the intent to interfere with military operations or promote the success of America's enemies; to cause or attempt to cause disobedience or disloyalty in the armed forces; and to obstruct willfully the recruiting services. Another title barred from the mails all written matter that violated the statute.

The following year Congress imposed further restrictions on expression in an amendment to the Espionage Act, commonly known as the Sedition Act. In 1940 it amended the law again, raising the penalties for violation of many of its provisions. A Korean War addition to the Espionage Act authorized seizure of unlawfully exported arms. The 1954 Espionage and Sabotage Act proscribed transmitting national defense information with the intent to injure the United States or aid a foreign nation, as well as the destruction of war material.

Only a few sections of these espionage acts have come before the Supreme Court. In Gorin v. United States (1941), the Court held that the government could convict someone for furnishing national defense information to a foreign country without proving that the defendant's actions had actually benefitted the other nation or harmed the United States. The case of convicted atomic spies Julius and Ethel Rosenberg was before the Supreme Court several times in the early 1950s. The only decision that involved the substance of the Espionage Act was Rosenberg v. United States (1953), holding that the death penalty provisions of the statute had not been superseded by the Atomic Energy Act of 1946 (see Capital Punishment).

Most of the Court's Espionage Act decisions have involved the few provisions limiting expression, and most of those rulings were rendered in cases arising out of the widespread repression of radicalism and dissent that accompanied American participation in World War I. The federal government employed the original 1917 law and its Sedition Act amendments against German‐Americans, socialists, members of the Industrial Workers of the World, and supporters of the Bolshevik Revolution in Russia. When the postmaster general used it to exclude the socialist Milwaukee Leader from the mails, the Supreme Court ruled in Social Democratic Publishing Co. v. Burleson (1921) that the postal power gave him the authority to do so.

The Court also reviewed several of the 1,050 criminal convictions the government obtained under the Espionage Act. It upheld them all. Despite the fact that provisions of both the original Espionage Act and the Sedition Act appeared to violate the First Amendment, the justices consistently rejected constitutional attacks on those laws and their application. In the most famous of these cases, Schenck v. United States (1919), Justice Oliver Wendell Holmes formulated the “clear and present danger” test, under which expression can be punished only if it creates an obvious and immediate threat of some substantive evil. Holmes nonetheless sustained the Espionage Act conviction of some Philadelphia socialists for sending out a leaflet urging draftees to assert their constitutional rights. He declared that many things that might be said in time of peace did not enjoy constitutional protection when the nation was at war.

During World War II, however, there was far less repression of dissent. Federal prosecutors seldom used those provisions of the Espionage Act that limited expression, and consequently the Supreme Court heard few cases of this type. In Hartzel v. United States (1944), it overturned a rare conviction on grounds that the prosecution had failed to prove that the defendant intended to bring about the consequences prohibited by the statute and that his activities created a clear and present danger. Since World War II, the Supreme Court has decided no Espionage Act cases of this type.

See also Communism and Cold War; Subversion.

Bibliography

• Zechariah Chafee, Jr., Free Speech in the United States (1941)

— Michal R. Belknap

A law enacted on June 5, 1917, after American entry to World War I, to suppress public opposition to the war. Provisions included $10, 000 fines and imprisonment for up to twenty years for persons who interfered with military operations, and it authorized the Postmaster General to remove from the mail materials obstructing the war effort. It led to the Sedition Act of 1918 and was re-enacted in the post- World War II era.

See the Introduction, Abbreviations and Pronunciation for further details.

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