The Land of the Not-So Free Espionage Act 1917

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If the Espionage
Act of 1917 had been the law in our generations we would have to
have built many new prisons to have housed the thousands of protestors
of the wars of the later half of the 20th century. Even
my college football coach would have been convicted. The Korean
War started in June of 1950. In September he had us sit in the bleachers
and told us not to enlist as war was horrible, hell on earth, and
we should go if called, but we should not volunteer. He had been
in WW2 and knew what war was all about and it was not glamorous,
high adventure, but ugly, horrible, and to be avoided if at all
possible. What he said to us young football players had a profound
effect on us as we admired him greatly. I wish members of my high
school relay team had heard him and listened to him. Two of them
(there were 4), enlisted and were killed in Korea. The Espionage
Act of 1917 made it a crime to discourage enlistments in the military,
even a crime to discourage people from buying Liberty (war) bonds.
The most ridiculous of all was the use of the word "Espionage"
meaning spying for an alien power. To bad some member of Congress
didn't have a dictionary. They might have called it unpatriotic
acts but not espionage.

In 1917 five
war protestors were handing out pamphlets on the streets of New
York opposing US involvement in World War 1, and promoting Russian
Revolutionary causes. They were arrested and charged under the Espionage
Act of 1917, which made it a crime to oppose the war, that is –

"Whoever,
when the United States is at war, shall willfully utter, print,
write or publish any disloyal, profane scurrilous, or abusive language
about the form of government of the United States…(the war, the
flag, the military, the navy, enlistments, buying bonds, uniforms,
etc,)…in contempt, scorn, contumely, or disrepute, or …intended
to incite, provoke or encourage resistance to the United States,
or to promote the cause of the enemy shall be punished by…a $10,000
fine or imprisonment up to 20 years."

It is a lengthy
statute, covering everything imaginable, none of which amount to
spying. It gives us a new definition of espionage that hasn't yet
found its way into dictionaries.

In the case
of Abrams vs. United States, the protesters were give 20 years prison
sentences. It was appealed to the Supreme Court, which upheld the
convictions by a 7 to 2 decision. They had published a pamphlet
with offensive words like,

"We the
toilers of America, who believe in real liberty, shall pledge ourselves,
in case the United States will participate in that bloody conspiracy
against Russia to create so great a disturbance that the Autocrats
of America shall be compelled to keep their armies at home and not
be able to spare any for Russia…If they will use arms against the
Russian people to enforce their standard of order, so will we use
arms…"

The seven Justices
who upheld the convictions rambled on about irrelevant matters like
the defendants were Russian immigrants in the US from 5 to 10 years,
never being naturalized. They were against the war and any action
against the Russian revolution. They advocated a general strike
against munitions factories so they could not produce bullets to
be used against German and Russian revolutionaries. If the armies
of America were kept busy at home they could not be used abroad,
wrote the pamphlet. The Court said, A technical distinction may
perhaps be taken between disloyal and abusive language…But it is
not necessary to a decision of this case to consider whether such
a distinction is vital or merely formal for the language of these
circulars was obviously intended to provoke and encourage resistance
to the United States in times of war…And the defendants, in terms,
plainly urged and advocated a general strike of workers in ammunition
factories for the purpose of curtailing production of ordinances
and munitions necessary and essential to the prosecution of the
war.

The dissent
by Oliver Wendell Holmes with Brandeis has now become the majority
decision with Holmes writing one of his greatly admired comments,
that "the defendants had as much right to publish as
the Government has to publish the Constitution of the United States."
I imagine the 7 Justices found Holmes remarks enraging.
Holmes was known for his brilliant and pithy comments and this was
one of his most remarkable. He then went on to state that unless
there was an imminent and immediate danger, you can say anything
no matter how loathsome and fraught with danger it may be. In time
this became the rule in the United States and the resisters of the
Viet Nam war can thank Justice Holmes, otherwise as I mentioned,
we would have had to build hundreds of new prisons for the tens
of thousands of Viet Nam protesters who would have come under the
Espionage Law of 1917. One of the big problems of the 1920s was
getting rid of all those in prison for speaking out and receiving
long prison terms, years after the war was over. There were 2000
arrests and 900 sent to prison. The Espionage Act of 1917 was in
full force during the 1920s, which is why 900 people were in prison.

There were
other cases in which Oliver Wendell Holmes doesn't look so great.
In the case of Schench vs. United States, he upheld the same Espionage
Act convicting those who wrote pamphlets opposing the draft in times
of war. While he enunciated his view that there must be a "clear
and present danger," and that no one can yell fire in a crowded
theatre, he saw that as applying to draft resistance in time of
war, because the nation needed men for the war and there should
be no opposition to the draft laws. Times have changed.

To
show the national panic and hysteria of the times, there was in
California in 1919, and 32 other states, a red flag law making it
a felony to fly a red flag or banner promoting anarchist or sedition
causes. The California Supreme Court declared the law unconstitutional
in 1931.

The horrors
of that war so moved civilization that there were many efforts to
make this the war to end all wars, like the Kellogg Briand Pact
in which all nations renounced war. What turned out to be a sad
joke. The first to break the pact was Japan in 1931 invading Manchuria,
Italy in Ethiopia in 1935 and Germany starting WW2.

I
was prompted to write this article after reading about the White
Rose anti-war protesters in Germany during WW2. They thought the
war was lost, and it was even in 1943. The Nazis had had their successes,
but that was over. The Russians had achieved great victories, the
Germans had been defeated in North Africa, they were losing the
battle in the Atlantic, in Italy, and the invasion of Europe via
France was being planned. On all fronts Germany was in retreat,
so the pamphlets weren't too far wrong. The protesters were courageous,
but maybe also suicidal. They suffered the ultimate penalty for
speaking out against Hitler's war in 1943. Yet in 1917 protesters
in America were punished with 20-year prison terms for the same
thing. The difference was that the Germans got the death penalty
while our protesters got long prison terms. Germany's very survival
was on the line, while ours was a foreign war a long way from home
at no risk to our survival. The White Rose protesters are honored
at the Munich University. Ours have been lost from history.


May
14, 2007

Attorney
Charles Adams (send him mail)
is
the author of When
in the Course of Human Events: Arguing the Case for Southern Secession
,
and Those
Dirty Rotten Taxes: The Tax Revolts That Built America
. Much
of this material and more on this subject can be found in his book,
For
Good and Evil: The Impact of Taxes on the Course of Civilization
.

Charles
Adams Archives

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