The Land of the Not-So Free Espionage Act 1917


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

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