Espionage Act

During World War I, the Wilson administration prosecuted more than two thousand people under the act, and seventy-four newspapers were denied mailing privileges. Among the most prominent figures to be prosecuted under the act were union leader and prominent Socialist Eugene Debs and political activist and anarchist Emma Goldman. Goldman was released from prison on September 27, 1919, and deported in December of that year. One unanticipated impact of the act was that citizens used it to settle scores with neighbors, family members, and others with whom they were at odds.

A number of prominent US Supreme Court cases arose in connection with the acts. Four, in particular, were decided in 1919. The first of these, Schenck v. United States, involved the prosecution of Socialists Charles Schenck and Elizabeth Baer for distributing leaflets that urged the public to disobey draft laws, arguing that the draft was a form of involuntary servitude. The two were convicted under the Espionage Act but appealed the decision on the ground that the act was a violation of their right to free speech under the First Amendment. The Supreme Court ruled unanimously that the act was a constitutional exercise of Congress's wartime authority. The decision was written by Justice Oliver Wendell Holmes, who held that the court owed greater deference to the government during wartime. In his decision, he articulated the concept of “clear and present danger,” contending that the First Amendment does not protect speech that creates a danger that Congress has the power to prevent. Holmes famously stated that distribution of the leaflet was similar to shouting “Fire!” in a crowded theater.

The second major case was Abrams v. United States, which arose after Russian immigrants, angered that the United States had taken part in a military operation in Russia against Germany after the Russian Revolution had deposed the czarist regime, circulated literature denouncing the war effort and calling for strikes at US ammunition plants to impede the US war effort. Three of the six defendants were sentenced to twenty years in prison. Relying on Schenck v. United States, the Court ruled that the defendants' actions posed a danger to the war effort. Justice Holmes was the lone dissenter from the Court's opinion, arguing that the defendants were merely protesting US interference in the Russian civil war and did not manifest any intent to obstruct the US war effort.

The third major case was Frohwerk v. United States, which turned on the prosecution of a publisher of a German-language newspaper in Missouri. Frohwerk was sharply critical of the US war effort and particularly of military conscription. He was found guilty of violating the Espionage Act, fined, and sentenced to prison. He appealed on the ground that his First Amendment rights had been violated, but once again the Court held that the conviction was valid, that the government has an interest in preserving and protecting military recruitment, and that Frohwerk was part of a conspiracy to disrupt recruitment.

A similar case involved Eugene V. Debs, who delivered a public speech urging his audience to interfere with military recruitment. Debs was subsequently convicted of violating the Espionage Act and sentenced to ten years in prison. He, too, appealed on First Amendment grounds, but his appeal was denied. Again, Justice Holmes, writing for a unanimous Court in Debs v. United States, ruled that Debs's conviction was constitutionally valid. While being held in prison in Oregon, Debs ran for president in the 1920 election and received more than 919,000 votes, or 3.4 percent of the total. President Warren Harding freed Debs and others in December 1921; although he did not pardon Debs, he commuted the remainder of his sentence.

The Sedition Act, set to expire in 1921, was repealed in 1920 as part of a broad repeal of wartime measures. The Espionage Act, however, remains on the books. Although the act (minus the Sedition Act amendments) might seem like a relic of a much earlier time in American history, it has been used in the twenty-first century in two prominent cases. One involved CIA analyst Edward Snowden, a computer expert who was charged with violating the Espionage Act after leaking classified documents connected with the National Security Agency's surveillance program. Snowden was granted asylum in Russia until 2020; were he to return to the United States, he would be liable to prosecution under the act. The other prominent case was that of WikiLeaks founder Julian Assange, who, in May 2019, was indicted on seventeen counts of violation of the Espionage Act for publishing classified material leaked by US Army intelligence analyst Chelsea Manning.