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.
Major Acts of Congress Strassfeld, Robert N.
