United States federal law
The Espionage Act of 1917 is a United States federal law enacted on June 15, 1917, shortly after the United States entered World War I. It has been amended numerous times over the years. It was originally found in Title 50 of the U.S. Code (War &amp; National Defense) but is now found under Title 18 (Crime &amp; Criminal Procedure): 18 U.S.C. ch. 37 ( § 792 et seq.).
It was intended to prohibit interference with military operations or recruitment, to prevent insubordination in the military, and to prevent the support of enemies of the United States during wartime. In 1919, the Supreme Court of the United States unanimously ruled through "Schenck v. United States" that the act did not violate the freedom of speech of those convicted under its provisions. The constitutionality of the law, its relationship to free speech, and the meaning of its language have been contested in court ever since.
Among those charged with offenses under the Act were: Austrian-American socialist congressman and newspaper editor Victor L. Berger; labor leader and five-time Socialist Party of America candidate Eugene V. Debs, anarchists Emma Goldman and Alexander Berkman, former Watch Tower Bible &amp; Tract Society president Joseph Franklin Rutherford (whose conviction was overturned on appeal),
communists Julius and Ethel Rosenberg, "Pentagon Papers" whistleblower Daniel Ellsberg, Cablegate whistleblower Chelsea Manning, WikiLeaks founder Julian Assange, Defense Intelligence Agency employee Henry Kyle Frese, and National Security Agency (NSA) contractor whistleblower Edward Snowden. Although the most controversial amendments, called the Sedition Act of 1918, were repealed on December 13, 1920, the original Espionage Act was left intact. Between 1921 and 1923, Presidents Warren G. Harding and Calvin Coolidge released all those convicted under the Sedition and Espionage Acts.
Enactment.
The Espionage Act of 1917 was passed, along with the Trading with the Enemy Act, just after the United States entered World War I in April 1917. It was based on the Defense Secrets Act of 1911, especially the notions of obtaining or delivering information relating to "national defense" to a person who was not "entitled to have it". The Espionage Act law imposed much stiffer penalties than the 1911 law, including the death penalty.
President Woodrow Wilson, in his December 7, 1915 State of the Union address, asked Congress for the legislation. Congress moved slowly. Even after the U.S. broke diplomatic relations with Germany, when the Senate passed a version on February 20, 1917, the House did not vote before the then-current session of Congress ended. After the declaration of war in April 1917, both houses debated versions of the Wilson administration's drafts that included press censorship. That provision aroused opposition, with critics charging it established a system of "prior restraint" and delegated unlimited power to the president. After weeks of intermittent debate, the Senate removed the censorship provision by a one-vote margin, voting 39 to 38. Wilson still insisted it was needed: "Authority to exercise censorship over the press...is absolutely necessary to the public safety", but signed the Act without the censorship provisions on June 15, 1917, after Congress passed the act on the same day.
Attorney General Thomas Watt Gregory supported passage of the act but viewed it as a compromise. The President's Congressional rivals were proposing to remove responsibility for monitoring pro-German activity, whether espionage or some form of disloyalty, from the Department of Justice to the War Department and creating a form of courts-martial of doubtful constitutionality. The resulting Act was far more aggressive and restrictive than they wanted, but it silenced citizens opposed to the war. Officials in the Justice Department who had little enthusiasm for the law nevertheless hoped that even without generating many prosecutions it would help quiet public calls for more government action against those thought to be insufficiently patriotic. Wilson was denied language in the Act authorizing power to the executive branch for press censorship, but Congress did include a provision to block distribution of print materials through the Post Office.
It made it a crime:
The Act also gave the Postmaster General authority to impound or refuse to mail publications the postmaster determined to violate its prohibitions.
The Act also forbids the transfer of any naval vessel equipped for combat to any nation engaged in a conflict in which the United States is neutral. Seemingly uncontroversial when the Act was passed, this later became a legal stumbling block for the administration of Franklin D. Roosevelt, when he sought to provide military aid to Great Britain before the United States entered World War II.
Amendments.
The law was extended on May 16, 1918, by the Sedition Act of 1918, actually a set of amendments to the Espionage Act, which prohibited many forms of speech, including "any disloyal, profane, scurrilous, or abusive language about the form of government of the United States ... or the flag of the United States, or the uniform of the Army or Navy".
Because the Sedition Act was an informal name, court cases were brought under the name of the Espionage Act, whether the charges were based on the provisions of the Espionage Act or the provisions of the amendments known informally as the Sedition Act.
On March 3, 1921, the Sedition Act amendments were repealed, but many provisions of the Espionage Act remain, codified under U.S.C. Title 18, Part 1, Chapter 37.
In 1933, after signals intelligence expert Herbert Yardley published a popular book about breaking Japanese codes, the Act was amended to prohibit the disclosure of foreign code or anything sent in code. The Act was amended in 1940 to increase the penalties it imposed, and again in 1970.
In the late 1940s, the U.S. Code was re-organized and much of Title 50 (War) was moved to Title 18 (Crime). The McCarran Internal Security Act added  § 793(e) in 1950 and  § 798 was added the same year.
In 1961, Congressman Richard Poff succeeded after several attempts in removing language that restricted the Act's application to territory "within the jurisdiction of the United States, on the high seas, and within the United States"  § 791. He said the need for the Act to apply everywhere was prompted by Irvin C. Scarbeck, a State Department official who was charged with yielding to blackmail threats in Poland.
Proposed amendments.
In 1989, Congressman James Traficant tried to amend  § 794 to broaden the application of the death penalty. Senator Arlen Specter proposed a comparable expansion of the use of the death penalty the same year. In 1994, Robert K. Dornan proposed the death penalty for the disclosure of a U.S. agent's identity.
History.
World War I.
Much of the Act's enforcement was left to the discretion of local United States Attorneys, so enforcement varied widely. For example, Socialist Kate Richards O'Hare gave the same speech in several states but was convicted and sentenced to prison for five years for delivering her speech in North Dakota. Most enforcement activities occurred in the Western states where the Industrial Workers of the World was active. Finally, a few weeks before the end of the war, the U.S. Attorney General instructed U.S. Attorneys not to act without his approval.
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. President Warren G. Harding commuted his sentence in December 1921 when he had served nearly five years.
In "United States v. Motion Picture Film" (1917), a federal court upheld the government's seizure of a film called "The Spirit of '76" on the grounds that its depiction of cruelty on the part of British soldiers during the American Revolution would undermine support for America's wartime ally. The producer, Robert Goldstein, a Jew of German origins, was prosecuted under Title XI of the Act and received a ten-year sentence plus a fine of $5000. The sentence was commuted on appeal to three years.
Postmaster General Albert S. Burleson and those in his department played critical roles in the enforcement of the Act. He held his position because he was a Democratic party loyalist and close to the President and the Attorney General. When the Department of Justice numbered its investigators in the dozens, the Post Office had a nationwide network in place. The day after the Act became law, Burleson sent a secret memo to all postmasters ordering them to keep "close watch on ... matter which is calculated to interfere with the success of ... the government in conducting the war". Postmasters in Savannah, Georgia, and Tampa, Florida, refused to mail the "Jeffersonian", the mouthpiece of Tom Watson, a southern populist, an opponent of the draft, the war, and minority groups. When Watson sought an injunction against the postmaster, the federal judge who heard the case called his publication "poison" and denied his request. Government censors objected to the headline "Civil Liberty Dead". In New York City, the postmaster refused to mail "The Masses", a socialist monthly, citing the publication's "general tenor". "The Masses" was more successful in the courts, where Judge Learned Hand found the Act was applied so vaguely as to threaten "the tradition of English-speaking freedom". The editors were then prosecuted for obstructing the draft, and the publication folded when denied access to the mails again. Eventually, Burleson's vigorous enforcement overreached when he targeted supporters of the administration. The president warned him to exercise "the utmost caution", and the dispute proved the end of their political friendship.
In May 1918, sedition charges were laid under the Espionage Act against Watch Tower Bible and Tract Society president "Judge" Joseph Rutherford and seven other Watch Tower directors and officers over statements made in the society's book, "The Finished Mystery", published a year earlier. According to the book "Preachers Present Arms" by Ray H. Abrams, the passage (from page 247) found to be particularly objectionable reads: "Nowhere in the New Testament is patriotism (a narrowly minded hatred of other peoples) encouraged. Everywhere and always murder in its every form is forbidden. And yet under the guise of patriotism civil governments of the earth demand of peace-loving men the sacrifice of themselves and their loved ones and the butchery of their fellows, and hail it as a duty demanded by the laws of heaven." The officers of the Watchtower Society were charged with attempting to cause insubordination, disloyalty, refusal of duty in the armed forces and obstructing the recruitment and enlistment service of the U.S. while it was at war. The book had been banned in Canada since February 1918 for what a Winnipeg newspaper described as "seditious and antiwar statements" and described by Attorney General Gregory as dangerous propaganda. On June 21 seven of the directors, including Rutherford, were sentenced to the maximum 20 years' imprisonment for each of four charges, to be served concurrently. They served nine months in the Atlanta Penitentiary before being released on bail at the order of Supreme Court Justice Louis Brandeis. In April 1919, an appeal court ruled they had not had the "intemperate and impartial trial of which they were entitled" and reversed their conviction. In May 1920 the government announced that all charges had been dropped.
Red Scare, Palmer Raids, mass arrests, deportations.
During the Red Scare of 1918–19, in response to the 1919 anarchist bombings aimed at prominent government officials and businessmen, U.S. Attorney General A. Mitchell Palmer, supported by J. Edgar Hoover, then head of the Justice Department's Enemy Aliens Registration Section, prosecuted several hundred foreign-born known and suspected activists in the United States under the Sedition Act of 1918. This extended the Espionage Act to cover a broader range of offenses. After being convicted, persons including Emma Goldman and Alexander Berkman were deported to the Soviet Union on a ship the press called the "Soviet Ark".
Many of the jailed had appealed their convictions based on the U.S. constitutional right to the freedom of speech. The Supreme Court disagreed. The Espionage Act limits on free speech were ruled constitutional in the U.S. Supreme Court case "Schenck v. United States" (1919). Schenck, an anti-war Socialist, had been convicted of violating the Act when he sent anti-draft pamphlets to men eligible for the 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 must be limited to such political expression that constitutes a "clear and present danger" to