Sherry Chandler

The Espionage Act of 1917

“My heart cries out,” Helen Keller wrote to Debs when she heard the news that his appeal had been denied. “I should be proud if the Supreme Court convicted me of abhorring war, and doing all in my power to oppose it. . . . The wise fools who sit in the high places of justice fail to see that in revolutionary times like the present vital issues are settled, not by statutes, decrees and authorities, but in spite of them.”
— quoted in Ernest Freeberg, Democracy’s Prisoner (Harvard, 2008)

When Eugene V. Debs was sent to prison in 1919, activists on the left thought there would be a great uprising and general strike of American workers. This did not happen, but the government was so in fear of it that they secreted Debs through the back roads from Cleveland to the West Virginia State Penitentiary, otherwise known as Moundsville. They were in fear of mass demonstrations along the main routes.

The instrument used to send Debs to prison was the Espionage Act of 1917. Although the title of the act is at least more sensible than the U.S.A. PATRIOT Act, which has to be one of the most insulting acronyms of all times, it was just as repressive. The Espionage Act, quoting Wikipedia, made it illegal

• 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.

Pay particular attention to those words “with intent.” That meant that the speech did not have to have results, only “intention.”

The Act was the second prong of Woodrow Wilson’s two-pronged attack on widespread domestic dissent against his war policies. The first prong was the Committee on Public Information, which spread pro-war propaganda. A cynical person might call these two “prongs” misinformation and repression. Both are, I suppose, always a temptation for governments in wartime and are not particularly unique to the Bush administration.

Like U.S.A. PATRIOT, the Espionage Act addressed a real internal threat, in this case, German spies, saboteurs, and agitators. According to Freeberg:

Provisions of the new “spy bill” that targeted thesse activities were uncontroversial, though in the end they proved futile. During the war, the Justice Department did not convict a single German spy or saboteur under the Espionage Act. [p. 46]

So, I suppose, the Bush administration is not unique in this ineffectiveness either. (Speaking of which, the latest from the military commission trial.)

Provisions in the bill to control domestic speech were not at first well received, especially by the major newspapers, which argued, as they did not long ago, that they were already self-censoring and that surely nobody would really think a newspaper would publish information that would aid the enemy.

Perhaps caught off guard by this barrage of criticism, proponents of the bill implored their fellow lawmakers to trust the president’s good intentions. “If we cannot give our Executive power,” Senator Overman complained, “then God help this country.” The best reply to that line of argument came from New York’s freshman congressmen Fiorello La Guardia. “The law admittedly makes the president a despot,” he scoffed, “but with the comforting assurance that the despot about to be created has the present expectation to be a very lenient, benevolent despot.”

Love those New York legislators.

The censorship provision was defeated. But, also included within the bill was

. . .a provision that would give the postmaster general the power to deny mailing privileges to any publication “advocating or urging treason, insurrection, or forcible resistance to any law of the United States.” . . .the “mailability” clause gave an indirect, but potentially broader, censorship power to Wilson’s postmaster, a conservative and crotchety Texan name Albert Burleson. The bill would allow him to punish a paper, not for revealing sensitive military secrets, but for using a tone that struck him as “treasonous.” With little debate and perhaps unintentionally, Congress was granting the Post Office what one historian has called “virtual dictatorial control” over the nation’s journals and newspapers. [p. 49]

Burleson used that power to put many Socialist, pacifist, and union newspapers out of business.

Protestors also were able to defeat the “disaffection” clause that made it illegal to “willfully cause or attempt to cause disaffection in the military.”

Harriet Thomas, a leader of the Women’s Peace Party, startled the committee when she told them, “It seems to me that under this act I would be liable to imprisonment for life, or a more drastic penalty, perhaps, if I should say that I would rather my sons be shot for refusing to go out and kill and bear arms against a supposed enemy of this country.” A congressman interrupted her to ask, “Then you do not honor your citizenship of this country?” Thomas stood her ground. “I feel I have a right to interpret my loyalty to my own country in my own terms of citizenship, and according to my own conscience, and I do not need any bill to tell me what my love of country shall represent.”

At that point, several on the committee told her that, once the Espionage Act passed, she would no longer have a right to make those kinds of provocative statements. “If your speech goes to the point of being treasonous,” one scolded her, “you are denied that right, and you ought to be.” Another exasperated congressman summed up the government’s position this way: “People should go ahead and obey the law, keep their mouths shut, and let the Government run the war.” [p. 50]

More and more familiar.

Gilbert Roe called the law “so indefinite that it simply becomes a vehicle for oppression.” He also said

“If you pardon the statement, I hardly see how it would be safe to say the Lord’s Prayer if this bill becomes a law. When we pray that our trespasses might be forgiven as we forgive those who trespass against us, I think it might be construed that we were praying for the forgiveness of our enemies, the Germans.” [p. 52]

When the law was passed, it dropped “disaffection.” But “with intent” was enough to get Debs,

The text of Deb’s seditious speech is here. He delivered at a picnic in Canton, Ohio on June 16. 1918. It took him a couple of hours to deliver it. People stayed to listen.

1. Debs at Moundsville
2. Democracy’s Prisoner
3. Some things I didn’t know about Eugene V. Debs
4. Above the Law?
5. Oliver Wendell Holmes, Jr.

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