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DEEPLINKS BLOG

The Espionage Act's Troubling Origins

June 14, 2017

One hundred years ago, President Woodrow Wilson signed the Espionage Act into law, and since then it has been used to criminalize the disclosure of national defense and classified information.

Dissent-Stifling Roots

At the turn of the 20th century, anti-immigrant, xenophobic sentiments dominated national rhetoric and was consequently reflected in the legislation crafted. On September 25, 1919, the 28th President of the United States Woodrow Wilson gave his final address in support of the League of Nations in Pueblo, CO and in his speech, he spoke of American immigrants with hyphenated nationalities: “Any man who carries a hyphen around with him carries a dagger that he is ready to plunge into the vitals of this Republic whenever he gets ready.” Wilson specifically targeted Irish-Americans and German-Americans, whom he perceived to be disloyal immigrants and potential spies. In fact, many state governments banned the teaching of German in schools, since it was “a language that disseminates the ideas of autocracy, brutality, and hatred.” The nativism movement continued to grow from the “Know-Nothing” party to the Palmer raids as concerns about espionage and disloyalty swirled.

 Thus, the Espionage Act was born against the backdrop of World War I and amidst fears of subversion of American democracy. Its primary purpose was to deal with avoidance of the draft, sabotage of state activities, and espionage. But its subsequent interpretations led to the punishment of socialists, pacifists, and other anti-war activists. Most infamously during this period, former Presidential candidate Eugene V. Debs was sentenced to 10 years in prison for a 1918 speech, denouncing the Espionage Act of 1917. The Supreme Court upheld his sentence, which was eventually commuted post-World War I.

The Espionage Act was further modified by the Sedition Act of 1918 but those amendments were ultimately overturned on March 3, 1921, when World War I ended. The Sedition Act sought to criminalize statements during the war that were “disloyal, profane, scurrilous, or abusive…about the form of government of the United States.” Those found in violation of the rules set forth in the act were subject to a fine of up to $10,000 and a prison sentence of up to 20 years.

Tested in Court

The constitutionality of the Espionage Act as a basis for punishing speech was tested in the landmark case, Schenck v. United States (1919), which concluded that First Amendment did not bar Schenck’s prosecution. The appellant Charles Schenck had mailed anti-draft letters to draftees, which read “Do not submit to intimidation.” The Supreme Court held that Schenck’s words were not protected by the First Amendment and was guilty of violating the Espionage Act of 1917.

A week after Schenck, the Court unanimously reaffirmed and reasserted its decision in another case, Frohwerk v. United States (1919). Jacob Frohwerk wrote twelve editorials for the Missouri Staats Zeiung in 1915, which denounced the United States’ involvement in World War I. The Supreme Court upheld the Espionage Act of 1917’s constitutionality. Justice Holmes again argued that the First Amendment does not “give immunity for every possible use of language.” Along with Debs v. United States (1919), the rulings emphasized the superseding nature of the Espionage Act of 1917 over any First Amendment claim during this time. (These First Amendment holdings were ultimately displaced by the far-more-speech-protective modern incitement doctrine finalized in Brandenburg v. Ohio in 1969.)

Anti-Communist, Anti-Whistleblower

The Espionage Act resurged as a tool used to root out communist influences in American society during the 1940s and 1950s. The Red Scare, led in particular by Senator Joe McCarthy and FBI Director J. Edgar Hoover, employed the Espionage Act to suppress the opinions of left-wing political figures. Indeed, it was the basis of the convictions that led to the executions of Julius and Ethel Rosenberg.

In addition to conventional spying, however, the Espionage Act has also been used to prosecute those who delivered confidential governmental information not to foreign governments, but to the press. Whistleblowers charged with violating the Espionage Act include Pentagon Papers leaker Daniel Ellsberg, WikiLeaks contributor Chelsea Manning, and NSA whistleblower Edward Snowden. Now there are threats that it may be used against the groups that publish that information.

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Read more about the murky legal history of the Espionage Act and how the law poses a threat to organizations that publish government information.

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