Espionage Act of 1917

Enacted: June 15, 1917

Place: United States (national)

Significance: Enforcement of this act led to the suppression of free speech and the press during World War I and to the prosecution and incarceration of political dissenters. Charges filed under the act continued into the twenty-first century.

In June 1917, two months after the United States declared war against Imperial Germany and a month after the Selective Service Act went into effect, the US Congress passed the Espionage Act. Concerned about the German American and Irish American opposition to the US support of Great Britain and its allies, as well as about potential interference with conscription, Congress defined three new criminal offenses. The act penalized “false statements or reports with intent to interfere with the operation” of military forces, causing “insubordination” in the military, and obstructing enlistment services.

Passage of the Espionage Act did not end Congress’ efforts to suppress dissent. The attorney general of the United States, Thomas Gregory, recommended several relatively minor adjustments in the act’s wording, but Congress enacted a series of amendments in 1918 that collectively became known as the Sedition Act. Among other offenses, it became a crime to “utter . . . print . . . write [or] publish” any disloyal “language intended to cause contempt” for “the form of government of the United States or the Constitution, or the flag or the uniform of the Army or Navy.” Conviction could bring fines of twenty-thousand dollars, prison terms of up to twenty years, or both. While the Sedition Act amendments were repealed by 1921 and many convicted under them were pardoned, the Espionage Act stayed in place.

Sedition Sections of the Act

The act was used during World War I to suppress any speech or act alleged to be disloyal to the United States or disparaging of the national war effort. No one, poor or rich, prominent or unknown, was immune from prosecution. For example, a California fortune teller who told a customer that liberty bonds were worthless and that her husband had been wounded in France was sentenced to two years in prison. A German American saloon keeper in Ohio who cursed President Woodrow Wilson and the United States was given a twenty-year sentence. A would-be poet in Pennsylvania who wrote doggerel in a disrespectful letter about the Liberty Bell was sentenced to five years in prison. Rose Pastor Stokes, the wife of an aristocratic and wealthy New Yorker, was convicted under the Espionage Act for saying that she was “for the people and the government is for the profiteers.” (Her conviction was later reversed by an appeals court.) An Alabama man angry at the United States for entering the war was sentenced to prison for fifteen months. In all, approximately two thousand persons—including many German Americans and Socialist Party members—were convicted under the law.

Constitutionality of the Espionage Act

The constitutionality of convictions under the Espionage Act was not decided by the US Supreme Court until after the end of the war when the court considered six cases. These concerned a Socialist Party handbill sent to military inductees, a speech by Eugene Victor Debs, two newspapers that printed objecting material, a protest against US intervention in the Russian Revolution, and a pamphlet opposing the US war effort. The first case, Schenck v. United States, was perhaps the most important in the doctrinal history of the First Amendment. Justice Oliver Wendell Holmes Jr. wrote the unanimous opinion for the Supreme Court, enunciating the “clear and present danger” test for construing the boundaries of permissible speech. In the third case, Holmes affirmed the conviction of Debs, the three-time Socialist candidate for president who ran again from his prison cell in 1920. Debs was pardoned by President Warren G. Harding the following year.

Frohwerk v. United States

Jacob Frohwerk and Carl Glesser, the editor and the publisher of a small German-language newspaper in Kansas City, had been indicted for conspiracy to violate the Espionage Act. They had written and published twelve articles between late 1917 that were pro-German and anti-British. One article argued that it was an error in policy to send American soldiers to the trenches in France and praised the “undiminished strength of the German nation.” Another referred to the Oklahoma draft riots and to the suffering of men drafted into the armed forces. Still another exhorted the American public to wake up to the fact “that we are led and ruled by England and that our sons, our taxes and our sacrifices are only in the interest of England.” Glesser had pleaded guilty and had been sentenced to five years; Frohwerk had gone to trial and been convicted, fined, and given a ten-year sentence.

The Frohwerk case was decided by the US Supreme Court in March 1919 with, once again, Justice Holmes writing the court’s unanimous opinion. As the record in the Frohwerk case came to the high tribunal no evidence was presented about who read the newspaper or what the attitudes and feelings of Kansas City’s German community were. Only the articles themselves were presented as evidence. In affirming their convictions, Holmes wrote that the court could act only on the basis of the record as it existed, and that on that record it was “impossible to say that it might not have been found that the circulation of the paper was in quarters where a little breath would be enough to kindle a fire and that the fact was known and relied upon by those who sent the paper out.”

Frohwerk’s sentence was later commuted to one year, and Justice Holmes, after the Debs case, broke with his colleagues on the court and authored dissenting opinions in Abrams v. United States (the handbill case protesting US intervention in the Russian Revolution) and in Pierce v. United States (the pamphlet case criticizing the American war effort). During the war, however, the Espionage Act was a potent weapon in government suppression of civil liberties and the prosecution and persecution of political dissenters.

Further Charges under the Espionage Act

Throughout the remainder of the twentieth century and into the early decades of the twenty-first, prosecutors continued to use the Espionage Act to charge individuals with related crimes. Over time, societal changes and developments such as the Cold War and the rise of the internet rendered the concept and identification of espionage only more complicated. While Julius and Ethel Rosenberg's high-profile conviction of espionage in 1951 and subsequent execution in 1953 as well as FBI agent Robert Hanssen's similar 2001 arrest for espionage on behalf of the Soviet Union and Russia centered upon the act's application to cases of alleged spying, the twenty-first century saw an increase in Espionage Act charges related to national security protection in the form of whistleblowing and leaked data.

Some of the first major twenty-first-century cases, enabled in large part by technological advancements in communications, involving leaked classified information occurred in the early 2010s. Chelsea Manning, an army intelligence analyst known at the time as Bradley Manning, was arrested and charged in 2011 with several felonies that included espionage for turning classified material pertaining to the wars in Iraq and Afghanistan over to the nonprofit organization WikiLeaks. Convicted on the majority of the charges in 2013, Manning was imprisoned until her sentence was commuted and she was released in 2017. Meanwhile, in 2013 the Justice Department unsealed charges, some of which fell under the Espionage Act, against Edward Snowden, a contractor with the National Security Agency (NSA) who had given the media classified information about mass surveillance programs. Leaving the US for Russia, Snowden was initially granted asylum there until he received permanent residency rights in 2020. Though formerly only brought up on a conspiracy charge for playing a role in Manning's transfer of classified information, in 2019 Julian Assange, the founder of WikiLeaks, was also indicted on Espionage Act charges. Having also fled, Assange spent several years under asylum in London's Ecuadorian embassy until his arrest in 2019. Ultimately pleading guilty and given a sentence of five years of imprisonment in 2018, NSA contractor Reality Winner was indicted in 2017 by the Justice Department under the Espionage Act for leaking material related to Russian interference in the 2016 presidential election; she was released in 2021 on the basis of good behavior. The act was then further debated when an FBI seizure of top secret material from former president Donald Trump's Mar-a-Lago residence in 2022 was reportedly conducted according to potential espionage charges.

Bibliography

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Myre, Greg. "Once Reserved for Spies, Espionage Act Now Used against Suspected Leakers." NPR, 28 June 2017, www.npr.org/sections/parallels/2017/06/28/534682231/once-reserved-for-spies-espionage-act-now-used-against-suspected-leakers. Accessed 23 Sept. 2022.

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