The Hidden Origins of the Espionage Act

A century ago, on June 15, 1917, Congress passed the Espionage Act. This law against interfering with military efforts, including recruitment, or providing information “useful to the enemy” offers a popular piñata for historians and civil libertarians. But while whacking away at this sweeping, seemingly illiberal, law—boom, surprise—some liberal goodies pop out.

The centurion is showing unexpected vigor these days. Not surprisingly, the Trump administration arrested its first leaker under this law. More surprisingly, Barack Obama’s administration used the law to prosecute more leakers than all previous presidents combined.

Democracies face two contradictions in combating espionage. Countries cannot survive without limits—but democracies cannot survive without limiting those limits. In classifying information, government of the people and by the people declares it doesn’t trust the people. Yet we must keep secrets to protect our troops while preserving the freedoms they fight to preserve.

The nine-week congressional debate that shaped the Espionage Act in 1917 tackled these dilemmas, just as America entered World War I. History-by-punchline throws the Espionage Act into a comedy routine mocking patriotic overreach: renaming sauerkraut as Liberty Cabbage, tarring and feathering loyal German-Americans, prosecuting book readers. Yet history is more nuanced: Germany was spying, recruiting traitors—especially immigrants—and trying to demoralize the American people.

Moreover, this seemingly regressive law was actually progressive. It began with the same progressive president, Woodrow Wilson, who fought monopolies, protected workers, founded the Federal Reserve, funded “Big Government” with the income tax, and appointed enlightened liberals like his Supreme Court nominee, Louis Brandeis.

Ideologically, the law reflected the progressive impulse to impose order through big government. Sociologically, it demonstrated America’s democratization. With more information flowing, and the people’s voice mattering more, government fears of leaks and critics mounted. The notion of “warfare by propaganda,” which Attorney General Thomas Gregory sought to suppress, represented a democratic leap forward. Even Wilson’s 1915 annual message denounced those who “have poured the poison of disloyalty into the very arteries of our national life.”

The Wilson administration’s first draft of the law triggered a bitter debate. Critics called it not just “un-American” but “Prussian.” Senator William Borah wisely compared dissent to water, “the more you dam up the stream the more liable you are to have a flow when it breaks over.”

The critics blocked Wilson’s proposed press censorship. But two more provisions passed. The first outlawed conveying “false information” to “interfere” with the military effort, encourage military “insubordination,” or “obstruct” recruiting. The second criminalized sending mail encouraging “treason, insurrection, or forcible resistance” to federal law. The free speech expert Geoffrey Stone criticizes the president’s proposal and the way prosecutors have used the law. But he deems the act passed by Congress “a carefully considered enactment designed to deal with very specific military concerns.”

Once passed, the Espionage Act evolved through three historical phases: it was frequently deployed during the War, often neglected subsequently, and recently revived. Of 13 Americans prosecuted since 1917 for leaking secrets, the Obama administration arrested eight of them. The Trump administration quickly arrested a possible fourteenth, the NSA contractor Reality Winner.

During World War I, the law didn’t help unmask German spies. It didn’t foster the national unity Wilson sought. Instead, prosecutors harassed nearly two thousand marginal radicals. That campaign amplified some fringe voices, making martyrs of the socialist Eugene V. Debs—jailed for championing free speech—and the deported anarchist Emma Goldman.

Reinforced by the harsher bundle of temporary amendments called the Sedition Act of 1918, the Espionage Act became a Boomerang Bill. Lawyers, scholars, and activists today—those who write history—bundle the bill with the hysterical overreaction called the Big Red Scare. The act warns that patriotic zeal can go too far, civil liberties must be preserved, and American democracy has a demagogic streak the Constitution must restrain.

The law suffered judicial blowback too: while upholding the act, the Supreme Court developed the stirring civil libertarian infrastructure that precipitated the Fifties’ and Sixties’ Rights Revolutions. In Schenck v. US (1919), Justice Oliver Wendell Holmes, representing a unanimous court, upheld three convictions, including Charles Schenck’s for distributing pamphlets discouraging military service.

Yet Holmes propelled the fight for freedom forward by writing: “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.” Asking whether the words “create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent,” justified government suppression, theoretically. But, historically, his clear and prescient standard protected many more patriotic dissidents and blocked many more patriotic zealots.

In fact, Schenk, amplified by Holmes’s dissent in the related Abrams case and others, sidelined the Espionage Act. Like a gun bought during a crime wave, it mostly lay forgotten, collecting dust in the prosecutorial drawer. During the second Red Scare—the McCarthyism of the 1950s—the Espionage Act continued backfiring, mostly. Today, the disdain is so great for the sneering Joe McCarthy and his pack, we often forget that, like the Germans in 1917, the Communists did try subverting America. Soviet agents made inroads in academe, Hollywood, the labor movement, the government. This Mild Red Flare didn’t justify another Big Red Scare.

But the subversion explains how the overreaction started—and reminds us that America has mortal enemies. These Red Scares also warn politicians—the quick popularity high you might enjoy when stirring yahoos against civil liberties disappears, leaving an enduring historical hangover clouding your reputation.

That is the dilemma Obama and his Justice Department faced with Chelsea Manning, Edward Snowden, and Julian Assange, among others. The information and freedom explosions of 1917 have grown exponentially. Our politics are more populist and media sensitive, making public morale more susceptible to foreign manipulation. The exposure grows because one disgruntled insider can publicize millions of sensitive documents instantly.

While more vulnerable to leaks, we’re more ambivalent about leakers. Ralph Nader’s exposes, the My Lai massacre’s whistleblowers, Daniel Ellsberg’s Pentagon Papers leaks, and Deep Throat, created a popular counter-narrative, turning turncoats into flag-wavers. If Trump’s Justice Department prosecutes reporters and informers with the rigor of the Obama administration, magnified by bursts of Trumpian bombast, you don’t need a crystal ball to predict greater blowback, and two dangerous trends: many unnecessary prosecutions that invalidate the few justified ones.

Still, in this as in many other realms, we will probably see what the Espionage Act’s history and the Trump Administration’s debut demonstrated. Our Constitution, our system, our fundamental rights are far more resilient than any one flawed law—or president.