The Espionage Act | Study Guide

United States Congress

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The Espionage Act | Summary & Analysis

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Summary

Fears over Spying and Anti-War Activities

After the United States entered World War I in April 1917, President Woodrow Wilson (1856–1924) was concerned about preventing espionage—engaging in spying and activities such as collecting information, in order to help an enemy—and silencing critics of the war effort. His administration wanted additional legal means to achieve this end. Thus, the House Committee on the Judiciary held public hearings, which often became quite heated, on proposals for suppressing subversive activities. The result of those hearings was the Espionage Act of 1917, which President Wilson signed into law. The Espionage Act of 1917 consists of nine sections.

Section 1: Acts of Espionage

Section 1 is broken up into five paragraphs, labeled (a), (b), (c), (d), and (e). This section of the law prohibits people from recording and transmitting details about U.S. infrastructure, industry, national defense, and military preparation with the intent to harm the nation or aid a foreign country with that information, thus outlining the basic crime of espionage.

Paragraph (a) is directed at anyone who enters, flies over, or otherwise obtains information about a variety of military infrastructure and hardware. The list of infrastructure and hardware includes facilities such as coaling stations, naval stations, and railroads, which are critical to the supply and transportation of people and materials of war. Likewise, the list includes factories for the production of weapons and equipment to be used in wartime. In addition, elements of production—including mines and factories (even when not being used specifically for wartime production) and communications infrastructure (including telegraph and telephone equipment)—are listed. Protected materials and infrastructure listed include those that are under construction. This section also applies to "prohibited places" as defined in Section 6 of the law. This is a very wide-ranging list of places and installations, and it can be expanded yet further by presidential decree, as established in Section 6.

The prohibition against "flying over" such places refers to the fear that airplanes could be used to spy on the United States and its war preparations. At the time, airplanes and other aircraft were a relatively new form of technology. The inclusion of aircraft themselves on the protected list shows the importance of this new technology to U.S. military planning. This applies also to submarines, which had become a major weapon of war during World War I. They were used extensively and successfully by Germany in that war to raid shipping.

Paragraph (b) prohibits the acquisition or production of photographs, sketches, blueprints, and other plans of "anything connected with the national defense." This criminalizes the act of taking official documents, as well as the act of producing sketches or written descriptions of protected materials.

Paragraph (c) prohibits the act of receiving, obtaining, or causing others to receive or obtain documents relating to the national defense. This section records exhaustively the variety of means by which sensitive information was recorded and stored, in the form of photographic negatives (the film from which pictures are developed) and scale models. The mention of code books and signal books refers to the secret codes that were used to encrypt transmissions by telegraph and radio, which were the main means of quick transmission of military information. A drawback of this technology was the possibility that enemies could hear transmissions; thus, they had to be encoded.

Paragraph (d) prohibits those who have access to or are entrusted with documents and images "relating to the national defense" from transmitting and communicating those materials. It also penalizes the failure to deliver such materials to "the officer or employee of the United States entitled to receive it."

Paragraph (e) prohibits anyone entrusted with documents and images related to the national defense from allowing the loss or theft of those materials through "gross negligence." This means that it is a crime not to carefully guard sensitive information and documents with which you have been entrusted. This paragraph also defines the penalties which apply to all of the crimes listed in the previous paragraphs, which are a fine of up to $10,000 or imprisonment up to two years—or both.

Section 2: Prohibited Materials and Communications

Section 1 covers the basic crime of espionage, which involves acquiring protected, confidential materials and information with the intent to harm the United States and its war effort. Section 2 builds on this by criminalizing the transmission or delivery of these materials to a foreign government, party, or agency of any kind. It does not matter whether the United States recognizes that foreign government as legitimate at the time, or indeed whether the agency, faction, or party is representative of the foreign government's wishes. It is even prohibited to communicate protected materials to a citizen of a foreign country.

Protected materials include code books, blueprints, photographic negatives, and any information relating to the national defense of the United States. The penalty for transmitting this material to a foreign agent, or for inducing someone else to do so, is imprisonment for up to 20 years.

Paragraph (a) of this section states that violation of Section 2 in time of war is punished by death or up to 30 years' imprisonment. This means that transmitting materials to foreign agents in wartime carries a stiffer penalty than during peacetime.

Paragraph (b) adds to the list of protected materials any information relating specifically to the quality, numbers, and movements of military materials and personnel. It also includes information about plans to fortify places and other measures taken for the public defense, "which might be useful to the enemy." This all means that information about military preparations and movements, whether at home or abroad, is protected. The penalty for passing this information on to a foreign agent is either death or up to 30 years' imprisonment.

Section 3: Restrictions on Free Speech

This section, which applies "when the United States is at war," makes it a crime to "make or convey false reports or false statements" in order to harm the operations or success of the armed forces of the United States. It also makes it a crime to promote the success of foreign enemies.

This wording is aimed in part at the population in the United States who were immigrants or descended from immigrants from countries the United States was at war with—especially those of German ancestry. According to the 1910 U.S. Census, there were some eight million German immigrants and their offspring in the country. Thus, there was widespread fear that this population could prove disloyal. President Wilson had given a dire warning in his 1915 State of the Union address about immigrants, particularly those who had been naturalized as citizens, who sought to weaken and harm the United States. Wilson also went to great lengths to silence voices of dissent once the United States joined World War I. Although Wilson had originally supported remaining neutral, after he came to support U.S. participation in the war, he opposed anti-war messages. This helped to ramp up anti-German sentiment, including the creation of loyalty leagues—groups dedicated to patriotism and loyalty to the country, sometimes including volunteers that attempted to help the government by trying to identify suspected German sympathizers. This sometimes led to intimidation, harassment, and violence against those who aroused suspicions.

This section further criminalizes the act of causing or attempting to cause "insubordination, disloyalty, mutiny, refusal of duty" among the armed forces or obstruction of military recruitment and enlistment. The penalty for violating these provisions was a fine of up to $10,000, up to 20 years' imprisonment, or both. The threat of military mutiny was a concerning issue to the U.S. government for two reasons. One was the Russian Revolution, ongoing at the time the Espionage Act was passed, which had seen Russia's monarchy overthrown partly as a result of military mutinies. The other concern was the role that American socialist and anarchist parties played in organizing opposition to the war as a way to promote their wider political goals. These leftist groups were controversial within wider American society.

This section of the law restricts speech rights of American citizens in wartime. It was used primarily to suppress opposition to conscription into the armed forces. Some 2,000 people were arrested for attempting to "obstruct recruiting" by encouraging people to resist the draft. Enforcement of the law was broadly left to local state authorities. Those authorities generally used Section 3 to suppress left-wing opposition and organization against the war. Thus, among those imprisoned under this provision were socialist and anti-war organizer Kate O'Hare and Charles T. Schenck, the general secretary of the U.S. Socialist Party. Schenck was arrested for making leaflets that argued that the draft violated the 13th Amendment's provisions against involuntary servitude. He was found guilty of violating the Espionage Act and sentenced to prison. Eugene V. Debs, Socialist Party leader and five-time presidential candidate, was convicted and imprisoned for giving an anti-war speech in 1918 that allegedly violated the Espionage Act. Debs was released in 1921 on the order of President Warren G. Harding (1865–1923).

Section 4: Expanded Definition of Conspiracy

This section makes it a crime for "two or more persons" to conspire to break the provisions listed in Sections 2 and 3. If one of the members of the conspiracy violates anything in Sections 2 and 3, then all of the other members of the conspiracy will be charged with the same crime. The section concludes by noting that any other conspiracies (that is, those not related to the specific provisions in this law) will be punished in accordance with Section 37 of the "Act to codify, revise, and amend the penal laws of the United States," which was enacted in 1909. That law defined a crime of conspiracy against or conspiracy to defraud the United States. It carries a penalty of a $10,000 fine or up to two years' imprisonment, or both. This provision of the Espionage Act thus criminalizes a conspiracy to commit espionage and penalizes all members of the conspiracy equally. This is a new category of conspiracy and does not replace the existing crime of conspiracy against or to defraud the United States.

Section 5: Discouraging Support, Encouraging Informants

This section makes it a crime to harbor or hide a person that one "knows, or has reasonable grounds to believe or suspect" has or intends to commit espionage as described above. The punishment for this provision is a fine of $10,000 or imprisonment for up to two years. The wording of this provision encourages people to come forward to inform investigators about people they suspect of espionage, or even of intent to commit espionage. This includes the provisions in Section 3, which include "false reports" and organization against the draft. Because the punishment for harboring such people is harsh, it is an incentive to inform on people to the authorities.

Section 6: Expanded Presidential Power

This section gives the president, "in time of war or in case of national emergency," the power to proclaim any place deemed critical to the national defense as a prohibited place. This provides the president the power to declare any place off-limits even if it is not already covered by the definitions listed in Section 1. The president has the sole authority to make this decision.

This provision gave the president a new and broad authority to order that people, or certain groups of people, be banned or removed from an area, if the president thought this was needed for the national defense. This principle eventually formed the basis for Executive Order 9066, issued in 1942 by President Franklin Delano Roosevelt (1882–1945), which mandated the removal and internment of Japanese Americans from the United States's west coast. More broadly, it reflects the trend of increasing presidential powers during the 20th century.

Section 7: Espionage by Civilians

This section establishes that the law does not impede on or limit the jurisdiction of military courts. These are listed as general courts-martial, military commissions, and naval courts-martial. This establishes that the law applies only to civilians and that military cases of espionage or disloyalty will be prosecuted by military law as usual.

Section 8: United States as a Global Power

This section establishes that the law applies to all "Territories, possessions, and places subject to the jurisdiction of the United States" and on the high seas within the "maritime jurisdiction of the United States." This means that it applies not only in the continental United States but all places subject to the laws of the United States. This meant it would apply to places such as the Philippines, which was acquired by the United States under the Treaty of Paris of 1898. That this law is applied in all U.S. territories and jurisdictions reflects the ascent of the United States as a global power. National defense meant more than just protecting the continental United States; it also meant defending overseas territories and protectorates. It also reflects the entry of the United States into a "world war" in which any of these places could, theoretically, be threatened by enemy activity.

Section 9: National Defense

This section establishes that an earlier law—"an Act to prevent the disclosure of national defense secrets" (1911)—is repealed. This was one of the first laws in the United States devoted to the security of national defense secrets. It arose out of concern that the United States was ill-equipped to prevent foreign espionage on its defenses and war assets. Some of the language from this earlier law is contained within the Espionage Act of 1917. This section makes clear that the Espionage Act replaces that older law.

Constitutionality of the Espionage Act

The issue of whether the Espionage Act was constitutional was soon brought before the U.S. Supreme Court in Schenck v. United States (1919). The court considered whether the law violated the First Amendment's guarantee of the right to free speech and expression. During World War I Charles Schenck, a socialist, had mailed leaflets urging resistance to the draft. He was prosecuted and jailed under the Espionage Act. The court unanimously ruled that the law was constitutional. The ruling, written by Justice Oliver Wendell Holmes, Jr. (1841–1935), held that freedom of expression could be limited if "the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent." Speech and expression that could hinder the war effort, the court concluded, created "a clear and present danger" and could thus be prohibited by the government. The "clear and present danger" test as a way to decide cases involving the restriction of free speech was used until 1969, when it was replaced by an "imminent lawless action test" in the Supreme Court's ruling in Brandenburg v. Ohio.

The Espionage Act and the Ongoing Debate over Civil Liberties

The act was strongly opposed by many Americans for its restrictions on civil liberties. It was discussed as part of a growing debate over civil liberties, including the question of if and when it is ever acceptable to limit the expression of political opinions (including unpopular or distasteful ones). Fears related to the Russian Revolution and the spread of communism helped to build support for restriction of free speech. This fear also created support for other hardline government action such as identifying and deporting "radicals" (suspected communists, anti-war activists, labor activists, and others who might challenge government policies) and performing searches, seizures, and arrests without warrants. On the other hand, many Americans feared the growing restriction of freedoms and the increased power of the government to arrest and imprison people who spoke against it. The American Civil Liberties Union (ACLU) was established in 1920 in reaction to the scaling back of Americans' civil liberties during and after World War I.

Despite opposition and court challenges, many provisions of the Espionage Act remain in effect. It has been used in a number of high-profile cases related to censorship, governmental transparency, and abuse of power. In 1973 Daniel Ellsberg (b. 1931) was charged under the act for leaking the Pentagon Papers, a government study detailing U.S. involvement in the Vietnam War (1955–75). Edward Snowden (b. 1983) was charged under the act in 2013 for releasing information about the National Security Agency's secret surveillance of U.S. citizens. Heated debate continues around questions related to what citizens can or should do when they disagree with the government's policies and actions. The Espionage Act remains part of that debate.

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