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 & National Defense), but is now found under Title 18 (Crime & Criminal Procedure): ( 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 & Tract Society president Joseph Franklin Rutherford (whose conviction was overturned on appeal), Rogerson, Alan (1969), Millions Now Living Will Never Die, Constable, London, , Full text online at the Internet Archive 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 Although the most controversial amendments, called the Sedition Act of 1918, were repealed on December 13, 1920, the original Espionage Act was left intact.Vaughn, Stephen L. (ed.) (2007), Encyclopedia of American Journalism, Routledge, London, , p. 155. Between 1921 and 1923, presidents Warren G. Harding and Calvin Coolidge released all those convicted under the Sedition and Espionage Acts.Peterson and Fite, (1957), pp 277-284.

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.Moynihan, Secrecy. 89 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.Moynihan, Secrecy, 90–92 That provision aroused opposition, with critics charging it established a system of "prior restraint" and delegated unlimited power to the president.Harold Edgar and Benno C. Schmidt Jr., "The Espionage Statutes and the Publication of Defense Information", Columbia Law Review. v. 73. no. 5, May 1973, 950–951 After weeks of intermittent debate, the Senate removed the censorship provision by a one-vote margin, voting 39 to 38.Moynihan, Secrecy, 92–95 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,Moynihan, Secrecy, 96 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.Geoffrey R. Stone, Perilous Times: Free Speech in Wartime from the Sedition Act of 1798 to the War on Terrorism (New York: W. W. Norton & Company, 2004), 231–232 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: To convey information with the intent to interfere with the operation or success of the armed forces of the United States or to promote its enemies' success. This was punishable by death or imprisonment for not more than 30 years or both. 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 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 fine of $10,000 or by imprisonment for not more than 20 years or both.

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.Jean Edward Smith, FDR (New York: Random House, 2007), 467, 755n54

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.Cornell Law School: Title 18, Part 1, Chapter 37, accessed December 4, 2010

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.Moynihan, Secrecy, 97; Herbert Yardley, The American Black Chamber (Bobbs-Merrill, 1931) The Act was amended in 1940 to increase the penalties it imposed, and again in 1970.C. William Michaels, No Greater Threat: America after September 11 and the Rise of a National Security State (Algora Publishing, 2002), 21, available online, accessed December 1, 2010

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 in 1950 and 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" . 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 to broaden the application of the death penalty.James Traficant, Civilian Espionage Penalties Amendments Act 1989 2 22, fas.org Senator Arlen Specter proposed a comparable expansion of the use of the death penalty the same year.National Defense Authorization Act for Fiscal Years 1990 AND 1991, Arlen Spector, July 31, 1989, fas.org 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.Kennedy, Over Here, 83 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.

Floyd Ramp, a founder of the U.S Communist Party, was sentenced to two years in prison for telling military personnel they were "fighting to protect [Rockefeller] money". Ramp was charged under the Espionage Act for conspiracy to obstruct the draft. The FBI called him "one of the most notorious radicals" in the United States.