Espionage Act 40 Stat. 451 (1917)

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ESPIONAGE ACT 40 Stat. 451 (1917)

When on April 2, 1917, President woodrow wilson asked Congress to recognize a state of war, he included in his indictment of Germany the activities of German agents in the United States. Such activity, he said, should be treated with "a firm hand of stern repression." Nine weeks later, a much discussed and much amended Espionage Act was signed into law.

The initial measure, an amalgamation of seventeen bills prepared in the attorney general's office, was intended to "outlaw spies and subversive activities by foreign agents." Critics, particularly in the American press, quickly complained that the measure was far too restrictive and imposed a type of prior restraint and censorship potentially destructive to basic American liberties. Thus, despite Wilson's contention that the administration must have authority to censor the press since this was "absolutely necessary to the public safety," the most overt censorship provisions were removed. The belief of a majority of national lawmakers that now the bill could not be used to suppress critical opinion overlooked the fact that two of the twelve titles of the act as passed still bore directly on freedom of expression. One provided punishment for (1) making or conveying false reports for the benefit of the enemy; (2) seeking to cause disobedience in the armed forces; and (3) willfully obstructing the recruiting or enlistment service. Another section closed the mails to any item violating any of the act's provisions.

The constitutional basis of these two provisions rested on a broad interpretation of the federal war powers and upon the argument that a denial of use of the mails did not constitute censorship, since the federal courts had ruled that the mails constituted an optional federal service. Thus, it was argued, refusal to extend the facility did not deprive anyone of a constitutional right. Further, the measure's supporters argued that freedom of speech was not absolute and could not protect a person who deliberately sought to obstruct the national war effort.

The difficulty of applying the law, however, was clear from the outset, since the statute sought to punish questionable intent, a difficult factor to measure. With punishment set at a $10,000 fine, imprisonment for up to twenty years, or both, and with its interpretation largely in the hands of patriotic enforcers, many suffered under the measure and its subsequent amendments. The Justice Department prosecuted more than 2,000 cases. At least 1,050 citizens were convicted under its terms, including Industrial Workers of the World leaders, Socialists (especially Eugene V. Debs), and a number of suspect hyphenates, particularly German Americans, whose verbal criticism of aspects of the war were often brutally repressed. The Supreme Court upheld the constitutionality of the act's prohibitions on causing disobedience in the armed forces and obstructing enlistment in a series of postwar decisions: schenck v. united states (1919), Frohwerk v. United States (1919), debs v. united states (1919).

Under the mails provisions, the postmaster general exercised virtually dictatorial authority over the effective circulation of the American press, a power which he used capriciously and subjectively for punitive reasons. In an effort to preserve first amendment values through the process of statutory construction, Judge learned hand construed the mails provision narrowly to exclude its application to ordinary criticism of government policies, including war policy. Hand's decision, however, was reversed by the court of appeals. (See masses publishing co. V. patten.)

The measure remained on the books through the 1920s and 1930s and was reenacted in March 1940, Congress increasing its penalties for peacetime violation. The Supreme Court narrowed its application in Hartzel v. United States (1944) by interpreting its provisions through a literal application of Holmes's clear and present danger test. The government again turned to it in 1971, seeking unsuccessfully to prevent the publication by the New York Times of the "Pentagon papers," which the government called harmful to the security of the United States.

(See new york times co. V. united states.)

Paul L. Murphy
(1986)

(see also: World War I.)