From Wikipedia, the free encyclopedia

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 (almost 22.5 years in today's years in respect to life expectancy).

The basic idea was to stop citizens from spying or interfering with military actions during World War I. The U.S. Supreme Court unanimously ruled the Act was constitutional in Schenck v. United States (1919).

Thus, while "espionage" is usually defined as a clandestine activity of getting secret information and passing it on to the enemy, the law vastly extended the meaning of the term to include also the openly carried expressing of political opinions, without revealing any secret, and by persons who had no connection with the enemy - as long as the expressing of such opinions was construed as helping the enemy.

The legislation was passed at the urging of President Woodrow Wilson, who feared any anti-war mobilization constituted a real threat to then American war effort.^[1]

There are other American federal laws that are referred to as "Espionage Acts" besides just this one. As a practical matter, most felons are convicted 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.^[2]

The poet E. E. Cummings and his friend William Slater Brown, then volunteers in the Norton-Harjes Ambulance Corps in France, were arrested on September 21, 1917. Cummings' "espionage" consisted mainly of his having openly spoken of his lack of hatred for the Germans.^[3] The two were sent to a military detention camp, the Dépôt de Triage, in La Ferté-Macé, Orne, Normandy, where they languished for 3½ months. Cummings' experiences in the camp were later related in his novel, The Enormous Room.

Publications which the Postmaster General determined were guilty of violating the Act would lose their mailing privilege, which would drastically limit the circulation of most periodicals.^[4]. 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 only be limited to political expression which constitutes a "clear and present danger" to the government action at issue.

The act was used during World War II to suppress the distribution of Charles Coughlin's weekly, Social Justice.^[5][6]

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.^[7]

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

• cryptographic intelligence and methods - 18 USC 798
• nuclear weapons and materials (Restricted Data) - Atomic Energy Act of 1954 (42 USC 2162, 2163, 2168, and 7383)
• industrial trade secrets - Industrial Espionage Act of 1996 (18 USC Chapter 90)
• intelligence sources - in particular the Intelligence Identities Protection Act (50 USC 421–426)
• data stored on computers - Computer Fraud and Abuse Act (18 USC 1030) and the Stored Communications Act (18 USC 2701)
• patient medical records (HIPAA)
• video tape rental and sale records — Video Privacy Protection Act — (18 USC 2710)

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. This was established with the last attempted use of the act occurred with the Pentagon Papers of 1971, in which the government argued they could not be published-New York Times Co. v. United States (403 US 713), but lost their case, although the act was not directly held as unconstitutional.

An 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

• Alien and Sedition Acts
• Executive Order 13292 Classified National Security Information
• Freedom of Information Act (United States)
• History and background of New York Times Co. v. United States
• Official Secrets Act (U.K. and others)
• Masses Publishing Co. v. Patten
• Security clearance

References

1. ^ John Milton Cooper, Woodrow Wilson (2009) pp 397-401
2. ^ Davis, Kenneth C. (2004). Don't Know Much About History (Revised ed. ed.). New York: Perennial. pp. 314. ISBN 0-06-008382-4.  
3. ^ Friedman, Norman "Cummings, E[dward E[stlin]" in Steven Serafin The Continuum Encyclopedia of American Literature, 2003, Continuum, p.244
4. ^ Sidney Kobre, Development of American Journalism (1969) p 577
5. ^ "Mails Barred to "Social Justice"". Pittsburgh Post-Gazette (Pittsburgh, Pennsylvania): pp. 1-2. 15 April 1942. http://news.google.com/newspapers?nid=1129&dat=19420415&id=SzsNAAAAIBAJ&sjid=DGoDAAAAIBAJ&pg=2530,6670133. Retrieved 1 January 2010.  
6. ^ Stone, Goeffrey R. (2004). "Free Speech in World War II: When are you going to indict the seditionists?". International Journal of Constitutional Law.  
7. ^ http://www4.law.cornell.edu/uscode/html/uscode18/usc_sec_18_00000793----000-.html

External links

• United States Code (USC)
• Excerpt from the original (1917) US Espionage Act
• United States v. Morison, a 1985 ruling that leaks to the press of classified information by government officials are prosecutable under 18 USC 793(d). The court specifically found that there is no need under this law to show any "evil purpose."
• Seymour Stedman, a Chicago attorney, who defended Eugene V. Debs and Rose Pastor Stokes on Espionage Act violations during WWI
• The United States v. Rose Pastor Stokes (1918)
• 2005 Federal Indictment of Lewis Libby (Page 2, section b)
• Repression against the IWW
• [1] PBS Frontline - "Dick Cheney's Memos From 30 Years Ago," by Lowell Bergman and Marlena Telvick on early attempts to prosecute reporters under the Espionage Act. (February 20, 2007)

Books

• Kohn, Stephen M. American Political Prisoners: Prosecutions under the Espionage and Sedition Acts. Westport, CT: Praeger, 1994.
• Murphy, Paul L. World War I and the Origin of Civil Liberties in the United States. New York: W.W. Norton, 1979.
• Peterson, H.C., and Gilbert C. Fite. Opponents of War, 1917-1918. Madison: University of Wisconsin Press, 1957.
• Preston, William, Jr. Aliens and Dissenters: Federal Suppression of Radicals, 1903-1933. 2nd ed. Urbana: University of Illinois Press, 1994.
• Rabban, David M. Free Speech in Its Forgotten Years. New York: Cambridge University Press, 1997.
• Scheiber, Harry N. The Wilson Administration and Civil Liberties 1917-1921. Ithaca: Cornell University Press, 1960.
• Thomas, William H., Jr. Unsafe for Democracy: World War I and the U.S. Justice Department's Covert Campaign to Suppress Dissent. Madison: University of Wisconsin Press, 2008.