Description: Laws passed during World War I outlawing the unauthorized transmission of information that might injure the nation's defense and banning a wide range of expressions of opinion critical of governmental policies or symbols during wartime.
Significance: Espionage act prosecutions led to the first significant attempts by the Supreme Court to interpret the free speech provisions of the First Amendment, including the original espousal of the clear and present danger test.
On June 15, 1917, two months after the United States entered World War I, Congress passed the Espionage Act. In addition to outlawing a wide variety of acts that fit the commonsense definition of“espionage,” including the gathering, transmission, or negligent handling of information that might harm U.S. defense efforts, the law forbade, during wartime, the willful making or conveying of false information with intent to interfere with the nation's armed forces or to promote the success of its enemies, as well as willful attempts to cause insubordination, disloyalty, mutiny, or refusal of duty within the military or the obstruction of military recruitment or enlistment. In practice, this law was used as the springboard for massive prosecutions of antiwar speeches and publications of all kinds across the United States, based on the theory that many such viewpoints were false and, in any case, aimed at undermining recruitment or other aspects of the war effort. Despite the sweeping language and even more sweeping prosecutions associated with the 1917 law, a far more draconian amendment to the Espionage Act, sometimes known as the Sedition Act, was enacted in 1918 in response to complaints that the original law was not stringent enough to suppress antiwar sentiment. The 1918 amendments outlawed virtually all conceivable criticism of the war, including any expressions of support for “any country with which the United State is at war” or that opposed “the cause of the United States therein.” Also banned was the oral or printed dissemination of all “disloyal, profane, scurrilous, or abusive language” about the “form of government” of the country, the Constitution, the flag, the military, and military uniforms, as well as any language intended to bring any of the above into “contempt, scorn, contumely, or disrepute.” Under these laws, more than two thousand people were indicted for written or verbal criticism of the war and more than one thousand were convicted, resulting in more than one hundred jail terms of ten years or more. No one was convicted under the espionage acts during World War I for spying activities. The 1918 amendments to the Espionage Act were repealed in 1920. Although the original 1917 law remains in effect, it was virtually never used after World War I to prosecute expressions of opinion (partly because the 1940 Smith Act included more updated sedition provisions); it has, however, been used in cases involving alleged theft of information, including in the prosecutions of Julius Rosenberg and Ethel Rosenberg during the Cold War and the Vietnam War-era prosecution of Daniel Ellsberg for dissemination of the Pentagon Papers.
The Supreme Court handed down six rulings concerning the constitutionality of Espionage Act prosecutions in 1919-1920, during a severe “red scare.” In every case, it upheld lower court convictions. Although the Court's rulings no doubt reflected the anticommunist climate, they had long-term significance because they were the first cases in which the Court sought to interpret the free speech clauses of the First Amendment and thus helped shape decades of subsequent debate and interpretation of this subject. In Schenck v. United States (1919), the Court upheld the conviction (under the original 1917 law) of a group accused of seeking to obstruct enlistment in the armed forces by mailing antidraft leaflets. Despite the lack of evidence that Schenck's mailings had any effect whatsoever, the Court, in a famous ruling penned by Justice Oliver Wendell Holmes, rejected Schenck's First Amendment claims. Holmes wrote that although the defendants would have been within their constitutional rights in saying what they did in ordinary times, the character of “every act depends upon the circumstances in which it is done.” Just as “the most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic,” the question was always whether the expression was used in such circumstances and was of such a nature as to create a “clear and present danger” that it would cause the “substantive evils” that Congress has the right to prevent. In Abrams v. United States (1919), a second landmark case (based on the 1918 amendment), the Court upheld the conviction of a group of defendants who had thrown from a New York City rooftop leaflets critical of U.S. military intervention against the new Bolshevik government in Russia. This case became known especially because of a dissent by Holmes, who essentially maintained that no clear and present danger had been demonstrated and that Congress could not constitutionally forbid “all effort to change the mind of the country.” In words that became famous both for their eloquence and because, after 1937, most Court rulings in First Amendment cases reflected their sentiment more than the those of the majorities in either Abrams or Schenck, Holmes declared that U.S. constitutional democracy was based on giving all thought an opportunity to compete in the free trade in ideas, and as long as that experiment remained part of the Constitution, Americans should be “eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten interference with the lawful and pressing purposes of the law that an immediate check is required to save the country.” In the only significant Espionage Act case involving First Amendment claims to be decided by the Court after 1920, a Court majority reflected Holmes's Abrams dissent. In Hartzel v. United States (1944), involving a man who had mailed articles attacking U.S. policies during World War II to Army officers and draft registrants (circumstances almost identical to Schenck), the Court reversed Hartzel's conviction on the grounds that there was no proof he had willfully sought to obstruct the activities of the armed forces.
- Chafee, Zechariah. Free Speech in the United States. New York: Atheneum, 1969.
- Fialka, John. War by Other Means: Economic Espionage in America. New York: W. W. Norton, 1997.
- Gannon, James. Stealing Secrets, Telling Lies: How Spies and Codebreakers Helped Shape the Twentieth Century. Washington, D.C.: Brassey's, 2001.
- Hitz, Frederick P. The Great Game: The Myth and Reality of Espionage. New York: Alfred A. Knopf, 2004.
- Jeffreys-Jones, Rhodri. Cloak and Dollar: A History of American Secret Intelligence. New Haven, Conn.: Yale University Press, 2002.
- Owen, David. Hidden Secrets: A Complete History of Espionage and the Technology Used to Support It. New York: Firefly Books, 2002.
- Polenberg, Richard. Fighting Faiths: The Abrams Case, the Supreme Court, and Free Speech. New York: Viking Penguin, 1987.