100 Years of the Espionage Act: Prosecuting Spies, Leakers, and Radicals

One hundred years ago today on June 15, 1917, the Espionage Act was signed into law by President Woodrow Wilson, putting in place criminal punishments for those who would "convey information" that undermines the U.S. military or aids its enemies.

What did it do?

In his 1915 State of the Union address, Wilson asked Congress for legislation to "save the honor and self-respect of the nation" by punishing the “infinitely malignant” persons whose disloyalty undermines U.S. security and strengthens its adversaries. Congress took until 1917 to seriously debate the legislation, when controversial provisions censoring the press favored by Wilson were removed by a one vote margin in the Senate, allowing it to advance.

The final version of the bill made it a crime to convey information with the intent to interfere with the operation or success of the U.S. armed forces or help its enemies succeed — punishable by death or by at least 30 years imprisonment, or both. Conveying false reports with the intent undermine the U.S. military to the advantage of its enemies, cause mutiny in or obstruct the recruiting or enlistment of the U.S. armed forces was punishable by a fine of up to $10,000 or up to 20 years imprisonment, or both.

It also allowed the Postmaster General to impound or refuse to mail correspondence that violated either of the above prohibitions, and included a seemingly uncontroversial provision that prohibited the U.S. from transferring naval ships to countries fighting a conflict the U.S. is neutral in.

What has its impact been?

While the ban on transferring naval vessels made it more difficult for President Franklin Roosevelt to provide military aid to Great Britain before the U.S. entered World War II, the Espionage Act’s biggest impact has been on those prosecuted under it.

The Espionage Act, and the restrictions on "disloyal" speech added to it by the Sedition Act of 1918, was used heavily during World War I to prosecute radicals who opposed the draft, or expressed unfavorable opinions about the government or the war effort — few spies were caught. One such radical was Eugene V. Debs, a Socialist Party presidential candidate who ran for president while serving his prison sentence (which was later commuted).

President Wilson pardoned or commuted the sentences of about 200 prisoners who’d been convicted under the laws, which underwent a major overhaul to remove the speech restrictions added by the Sedition Act. That came after a landmark Supreme Court case, Schenck v. U.S., which upheld the law but included Justice Oliver Wendell Holmes’s famous opinion that:

"The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic."

The Espionage Act was used sparingly during World War II, but experienced a revival of sorts during the Red Scare of the 1950s when it was used in the prosecution of Soviet spies, including Julius and Ethel Rosenberg who sold nuclear secrets to America’s Cold War adversary. It was also used to unsuccessfully prosecute the authors of the Pentagon Papers in 1971, and in the convictions of several others for providing state secrets to the Soviets and others during the ensuing decades.

While prosecutions for providing secrets to foreign governments have occurred in the 21st century, the Espionage Act has primarily been used prosecute leakers in the current era. Of the 13 Americans prosecuted for leaking secrets to the press since 1917, the Obama administration alone arrested eight of them, including Chelsea Manning (Edward Snowden was charged under the law, but has evaded arrest). The Trump administration has already arrested its first leaker — Reality Winner — who is facing a felony charge under the Espionage Act.

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— Eric Revell

(Photo Credit: U.S. Army graphic / Public Domain)