Repeal the Espionage Act?

Senator Rand Paul has taken some heat for a recent tweet that called for the repeal of the Espionage Act, passed by Congress in 1917 as America entered World War I. Since this law is the one that will likely be used against former president Donald Trump, in the latest attempt by the government to pin something on him, Paul’s detractors have taken to painting him with the same “Russian agent” brush they use for anyone who says anything in defense of Trump.

Yet Senator Paul’s point was the nefarious history behind this infamous law and the many violations of the First Amendment, especially by the Wilson Administration, that occurred soon after it was passed.

But first, what is the Espionage Act? I wrote a lot about it in my book, The Jazz Age President: Defending Warren Harding.

The Espionage Act gave the President vast new powers to deal with foreign spies, subversives, and traitors, including powers over trade and the authority to restrict certain material from the mail if it was deemed incendiary or treasonous. Mail restrictions would be administered by the Postmaster General, Albert Sidney Burleson. He believed there existed “a limit” to speech in such trying times. If any publication “begins to say that this Government got in the war wrong, that it is in it for the wrong purposes, or anything that will impugn the motives of the Government for going into the war. They can not say that this Government is the tool of Wall Street or the munitions-makers…. There can be no campaign against conscription and the Draft Law,” he said.

And under this new law, Postmaster General Burleson stopped distribution of Masses, a radical journal edited by Max Eastman. Many others were warned about the simplest of violations. For example, The New Republic, which supported the war effort, ran ads for the National Civil Liberties Bureau but was threatened with losing its mail distribution if it continued.

The law further forbade anyone from interfering with the military draft or in encouraging others to do so, or to in any way cavort with the enemy. In 1918, the original act, written in very vague language, was clarified and greatly strengthened with passage of the Sedition Act, which widened the scope of the government’s powers over speech. It would now be illegal for anyone to “utter, print, write, or publish any disloyal, profane, scurrilous, or abusive language about the form of government of the United States, or the Constitution of the United States, or the military or naval forces of the United States,” or to “willfully display the flag of any foreign enemy.” Violators faced a possible 20-year sentence in prison and a fine of up to $10,000. 

With these two laws, and the mechanisms used to enforce them, America seemed to be transformed into a police state, all while waging a war to protect democracy around the world. H. L. Mencken wrote at the time that “between Wilson and his brigades of informers, spies, volunteer detectives, perjurers and complaisant judges … the liberty of the citizens has pretty well vanished in America.”

Armed with these new powers, the government jailed the nation’s leading socialist, Eugene Debs, for one speech he gave in Ohio, denouncing Wilson and his war. He was convicted and given a ten-year sentence in federal prison.

Over the course of Wilson’s War, tens of thousands of American citizens were arrested for their opposition, oftentimes for the most innocent of activities and usually without cause. 

• One man was jailed simply because he explained to someone why he did not want to buy Liberty Bonds, even though the conversation took place in the man’s own home. 

• A Hollywood movie producer received a ten-year prison term for making a film about the American Revolution that focused on atrocities committed by the British, and since the former Mother Country was a staunch American ally in the war against Germany, such speech was no longer allowable. 

• A state official in Wisconsin was put in jail for two-and-a-half years because he criticized a Red Cross fundraiser. 

• The famous writer Upton Sinclair, author of The Jungle, was arrested in California for reading the Bill of Rights in public. 

• Founding member of the ACLU, Roger Baldwin, was likewise jailed for a public reading of the Constitution in New Jersey.

Another egregious example was Charles Schenck, who handed out fliers that criticized and opposed the military draft. His case, though, went to the US Supreme Court. But a unanimous Court ruled in 1919, in Schenck v. United States, that his action was not protected speech under the First Amendment. In his written opinion, Justice Oliver Wendell Holmes held that Congress had a right to restrict such acts. Likening it to a man “falsely shouting fire in a theater and causing a panic,” Holmes reasoned that speech could, in fact, be limited and that the government must be allowed to prevent “substantive evils” because of a “clear and present danger” to the nation. The Court also unanimously upheld Debs’ conviction the same year.

When Warren Harding came to the White House, he pardoned Debs and scores of political prisoners who were convicted for exercising their First Amendment rights. Republicans repealed the Sedition Act in 1920 but the Espionage Act remains on the law books. 

As Jacob B. Hornberger of the Future of Freedom Foundation has written, “How in the world can such prosecutions and convictions possibly be reconciled with the principles of a free society? Freedom necessarily entails the right to criticize government for anything, including its wars, its enslavement of people, its tyranny, and anything else.”

Senator Rand Paul is right. This law was enacted and used to persecute political speech and to jail political opposition, just as it can be used for such a purpose today. The Espionage Act is more than 100 years old, a relic of World War I. It should be on the chopping block, or, at the very least, greatly restricted.