Espionage Acts

Espionage Acts prohibit not only spying but also a variety of other activities, including certain kinds of expression. Consequently, they have often been at issue in First Amendment litigation before the Supreme Court. Congress enacted the first such law during World War I, amid concern about spies and the subversive activities of foreign agents. The Espionage Act of 15 June 1917 was an omnibus measure that only punished the unauthorized obtaining, receiving, and communicating of national defense information but also contained provisions dealing with foreign ships in American ports, the seizure of arms intended for export, passports, search warrants, and even the counterfeiting of government seals. One section made it a crime, whenever the United States was at war, to make or convey false reports with the intent to interfere with military operations or promote the success of America's enemies; to cause or attempt to cause disobedience or disloyalty in the armed forces; and to obstruct willfully the recruiting services. Another title barred from the mails all written matter that violated the statute.

The following year Congress imposed further restrictions on expression in an amendment to the Espionage Act, commonly known as the Sedition Act. In 1940 it amended the law again, raising the penalties for violation of many of its provisions. A Korean War addition to the Espionage Act authorized seizure of unlawfully exported arms. The 1954 Espionage and Sabotage Act proscribed transmitting national defense information with the intent to injure the United States or aid a foreign nation, as well as the destruction of war material.

Only a few sections of these espionage acts have come before the Supreme Court. In Gorin v. United States (1941), the Court held that the government could convict someone for furnishing national defense information to a foreign country without proving that the defendant's actions had actually benefitted the other nation or harmed the United States. The case of convicted atomic spies Julius and Ethel Rosenberg was before the Supreme Court several times in the early 1950s. The only decision that involved the substance of the Espionage Act was Rosenberg v. United States (1953), holding that the death penalty provisions of the statute had not been superseded by the Atomic Energy Act of 1946 (see Capital Punishment).

Most of the Court's Espionage Act decisions have involved the few provisions limiting expression, and most of those rulings were rendered in cases arising out of the widespread repression of radicalism and dissent that accompanied American participation in World War I. The federal government employed the original 1917 law and its Sedition Act amendments against German‐Americans, socialists, members of the Industrial Workers of the World, and supporters of the Bolshevik Revolution in Russia. When the postmaster general used it to exclude the socialist Milwaukee Leader from the mails, the Supreme Court ruled in Social Democratic Publishing Co. v. Burleson (1921) that the postal power gave him the authority to do so.

The Court also reviewed several of the 1,050 criminal convictions the government obtained under the Espionage Act. It upheld them all. Despite the fact that provisions of both the original Espionage Act and the Sedition Act appeared to violate the First Amendment, the justices consistently rejected constitutional attacks on those laws and their application. In the most famous of these cases, Schenck v. United States (1919), Justice Oliver Wendell Holmes formulated the “clear and present danger” test, under which expression can be punished only if it creates an obvious and immediate threat of some substantive evil. Holmes nonetheless sustained the Espionage Act conviction of some Philadelphia socialists for sending out a leaflet urging draftees to assert their constitutional rights. He declared that many things that might be said in time of peace did not enjoy constitutional protection when the nation was at war.

During World War II, however, there was far less repression of dissent. Federal prosecutors seldom used those provisions of the Espionage Act that limited expression, and consequently the Supreme Court heard few cases of this type. In Hartzel v. United States (1944), it overturned a rare conviction on grounds that the prosecution had failed to prove that the defendant intended to bring about the consequences prohibited by the statute and that his activities created a clear and present danger. Since World War II, the Supreme Court has decided no Espionage Act cases of this type.

See also Communism and Cold War; Subversion.

Bibliography

Zechariah Chafee, Jr. , Free Speech in the United States (1941).

Michal R. Belknap