Espionage Act of 1917

The Espionage Act of 1917 was a United States federal law passed shortly after entering World War I, on June 15, 1917, which made it a crime for a person:

  • to convey information with intent to interfere with the operation or success of the armed forces of the United States or to promote the success of its enemies. This was punishable by death or by imprisonment for not more than 30 years
  • to convey false reports or false statements with intent to interfere with the operation or success of the military or naval forces of the United States or to promote the success of its enemies and whoever when the United States is at war, to cause or attempt to cause insubordination, disloyalty, mutiny, refusal of duty, in the military or naval forces of the United States, or to willfully obstruct the recruiting or enlistment service of the United States. This was punishable by a maximum $USD 10,000 fine (almost $170,000 in today's dollars) and 20 years in prison.

The legislation was passed at the urging of President Woodrow Wilson, who feared any widespread dissent in time of war, thinking that it constituted a real threat to an American victory.

There are other American Federal Laws that are referred to as "Espionage Acts" besides just this one. As a practical matter, most felons are conviced and tried under these Acts of Congress, rather than going about the very difficult process of trying and convicting someone for Treason. In many cases, the maximum penalty for espionage is the same as that for treason - including imprisonment for life or possibly execution.

Enforcement of the Act

A year after the Act's passage, Eugene V. Debs, Socialist Party presidential candidate in 1904, 1908, and 1912 was arrested and sentenced to 10 years in prison for making a speech that "obstructed recruiting". He ran for president again in 1920 from prison. He was pardoned by President Warren G. Harding after serving nearly 3 years. Eugene Debs and Bill Haywood were socialist and labor leaders that were jailed due to political actions.

Publications which the Wilson Administration determined were guilty of violating the Act "were subject to being deprived of mailing privilege, a blow to most periodicals," according to Sidney Kobre's book Development of American Journalism. A section of the Act allowed the Postmaster General to declare all letters, circulars, newspapers, pamphlets, packages and other materials that violated the Act to be unmailable. As a result, about 75 newspapers either lost their mailing privileges or were pressured to print nothing more about World War I between June 1916 and May 1918. Among the publications which were censored as a result of the Act were two Socialist Party daily newspapers, the New York Call and the Milwaukee Leader. The editor of the Leader, Victor Berger, was sentenced to 20 years imprisonment after being convicted on a charge of conspiracy to violate the Act; this was later reversed on a technicality. Other publications banned from the mails were the Industrial Workers of the World (IWW) journal Solidarity, American Socialist, bohemian radical magazine The Masses, German-American or German-language newspapers, pacifist publications, and Irish nationalist publications (such as Jeremiah O'Leary's Bull).

The Act in the courts

The laws were ruled to be compliant with the United States Constitution in the United States Supreme Court case Schenck v. United States, 249 U.S. 47 (1919). Schenck, an anti-war Socialist, had been convicted of violating the Act, after he published a pamphlet urging resistance to the World War I draft. Although Supreme Court Justice Oliver Wendell Holmes joined the Court majority in upholding Schenck's conviction in 1919, he also introduced the theory that punishment in such cases can be limited to only political expression which constitutes a "clear and present danger" to the government action at issue.

Later court decisions have cast serious doubt upon the constitutionality of the Espionage Act, including Brandenburg v. Ohio (which changed the "clear and present danger" test derived from Schenck to the "imminent lawless action" test), New York Times Co. v. United States, and United States v. The Progressive, Inc., although none of these decisions directly overruled it.

Changes to the Act

The law was later extended by the Sedition Act of 1918, which made it illegal to speak out against the government.

During and after World War I, the Espionage Act and the Sedition Act were used in some prosecutions that would be considered constitutionally unacceptable in today's United States, even in the political climate after the September 11, 2001 attacks on New York's World Trade Center. While many of the laws were repealed in 1921, major portions of the Espionage Act remain part of United States law (18 USC 793, 794). The libel decision of New York Times Company v. Sullivan (1964), by granting enhanced protection to criticism of public figures, including government officials, largely eliminated what remained of the crime of sedition in the United States.

The United States Congress has enacted other laws to protect specific types of privately held information including:

Note that some of the aforementioned acts either are related to very personal and private data of individuals and companies, such as health records, the contents of personal computer hard drives, or secrets used by manufacturers to gain a competitive advantage, or, when related to records of government activities, they prohibit unlawful disclosure of a secret by someone lawfully privy to the secret in question. Unlike the Espionage Act, they do not prohibit disclosure by someone who merely obtained the secret (i.e. whom the secret was leaked to) from someone lawfully privy to it.

As a general rule, even if the Espionage Act were construed to be Constitutional, the publication of alleged state secrets obtained by non-governmental personnel may not be interfered with by the government; only the act of publishing may be punished, after the fact; see prior restraint.

The important exception to this doctrine is the so-called "troop-ship exception", which relates to the dissemination of information that is likely to result in extraordinary endangerment of national security, and to loss of life, such as the disclosure of the position of a flotilla of troop-ships in a time of war, or the actual schematics and specifications (as opposed to the theory of operations) of a nuclear weapon.


See also

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