The Espionage Act of 1917: Definition, Summary, and History

The Espionage Act of 1917, passed by Congress two months after the United States declared war against Germany in World War I, made it a federal crime for any person to interfere with or attempt to undermine the U.S. armed forces during a war, or to in any way assist the war efforts of the nation’s enemies. Under the terms of the act, signed into law on June 15, 1917, by President Woodrow Wilson, persons convicted of such acts could be subject to fines of $10,000 and 20 years in prison. Under one still-applicable provision of the act, anyone found guilty of giving information to the enemy during wartime may be sentenced to death. The law also authorizes the removal of material considered “treasonable or seditious” from the U.S. mail.

While the intent of the act was to define and punish acts of espionage—spying—during wartime, it necessarily placed new limits on Americans’ First Amendment rights. Under the wording of the act, anyone who publicly protested against the war, or the military draft could be open to investigation and prosecution. The non-specific language of the act made it possible for the government to target virtually anyone who opposed the war, including pacifists, neutralists, communists, anarchists, and socialists.

The law was quickly challenged in court. However, the Supreme Court, in its unanimous decision in the 1919 case of Schenck v. United States, held that when America faced “a clear and present danger,” Congress had the power to enact laws that might during times of peace be constitutionally unacceptable. 

Just one year after its passage, the Espionage Act of 1917 was extended by the Sedition Act of 1918, which made it a federal crime for any person to use “disloyal, profane, scurrilous, or abusive language” about the U.S. government, the Constitution, the armed forces, or the American flag. Although the Sedition Act was repealed in December of 1920, many people faced charges of sedition in the midst of growing post-war fears of communism. Despite the total repeal of the Sedition Act, several provisions of the Espionage Act of 1917 remain in effect today.

History of the Espionage Act

The outbreak of World War I shook America and Americans out of a more than 140 year-long self-imposed period of isolationism. Fears of internal threats posed especially by foreign-born Americans grew quickly. In his State of the Union address on December 7, 1915, almost two years before the U.S. would enter the war in 1917, President Wilson forcefully urged Congress to pass the Espionage Act. 

“There are citizens of the United States, I blush to admit, born under other flags but welcomed under our generous naturalization laws to the full freedom and opportunity of America, who have poured the poison of disloyalty into the very arteries of our national life; who have sought to bring the authority and good name of our Government into contempt, to destroy our industries wherever they thought it effective for their vindictive purposes to strike at them, and to debase our politics to the uses of foreign intrigue ...

“I urge you to enact such laws at the earliest possible moment and feel that in doing so I am urging you to do nothing less than save the honor and self-respect of the nation. Such creatures of passion, disloyalty, and anarchy must be crushed out. They are not many, but they are infinitely malignant, and the hand of our power should close over them at once. They have formed plots to destroy property, they have entered into conspiracies against the neutrality of the Government. They have sought to pry into every confidential transaction of the Government in order to serve interests alien to our own. It is possible to deal with these things very effectually. I need not suggest the terms in which they may be dealt with.”

Despite Wilson’s passionate appeal, Congress was slow to act. On February 3, 1917, the U.S. officially broke diplomatic relations with Germany. Although the Senate passed a version of the Espionage Act on February 20, the House decided not to vote before the end of the current session of Congress. Shortly after declaring war against Germany on April 2, 1917, both the House and Senate debated versions of the Wilson administration’s Espionage Act that included strict censorship of the press. 

The provision for press censorship—an apparent suspension of a First Amendment right—stirred stiff opposition in Congress, with critics arguing that it would grant the president unlimited power to decide what information “might” be harmful to the war effort. After weeks of debate, the Senate, by a vote of 39 to 38, removed the censorship provision from the final law. Despite the removal of his press censorship provision, President Wilson signed the Espionage Act into law on June 15, 1917. However, in a memorable bill signing statement, Wilson insisted that press censorship was still needed. “Authority to exercise censorship over the press … is absolutely necessary to the public safety,” he said.

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Famous Prosecutions under the Espionage and Sedition Acts

Since World War I, several Americans have been convicted or indicted for violations of the espionage and the sedition acts. A few of the more notable cases include:

Eugene V. Debs

In 1918, prominent labor leader and five-time Socialist Party of America presidential candidate Eugene V. Debs, who had long criticized America’s involvement in the war, gave a speech in Ohio urging young men to resist registering for the military draft. As a result of the speech, Debs was arrested and charged with 10 counts of sedition. On September 12, he was found guilty on all counts and sentenced to 10 years in prison and denied the right to vote for the rest of his life.  

Debs appealed his conviction to the Supreme Court, which unanimously ruled against him. In upholding Debs’ conviction, the Court relied on the precedent set in the earlier case of Schenck v. United States, which held that speech that could potentially undermine society or the U.S. government was not protected under the First Amendment.

Debs, who actually ran for president from his jail cell in 1920, served three years in prison, during which his health deteriorated rapidly. On December 23, 1921, President Warren G. Harding commuted Debs’ sentence to time served. 

Julius and Ethel Rosenberg 

In August 1950, American citizens Julius and Ethel Rosenberg were indicted on charges of spying for the Soviet Union. At a time when the United States was the only country in the world known to have nuclear weapons, the Rosenbergs were accused of giving the USSR top-secret nuclear weapon designs, along with information about radar, sonar, and jet engines. 

After a long and controversial trial, the Rosenbergs were convicted of espionage and sentenced to death under Section 2 of the Espionage Act of 1917. The sentence was carried out at sundown on June 19, 1953. 

Daniel Ellsberg

In June 1971, Daniel Ellsberg, former U.S. military analyst working for the RAND Corporation think tank, created a political firestorm when he gave the New York Times and other newspapers the Pentagon Papers, a top-secret Pentagon report on President Richard Nixon’s and his administration’s decision-making process in conducting and continuing America’s participation in the Vietnam War.

On January 3, 1973, Ellsberg was charged with violations of the Espionage Act of 1917, as well as theft and conspiracy. In all, the charges against him carried a total maximum prison sentence of 115 years. However, on May 11, 1973, Judge William Matthew Byrne Jr. dismissed all charges against Ellsberg, after finding that the government had illegally collected and handled evidence against him.

Chelsea Manning

In July 2013, former U.S. Army Private First Class Chelsea Manning was convicted by a military court-martial for violations of the Espionage Act relating to her disclosure of nearly 750,000 classified or sensitive military documents on the wars in Iraq and Afghanistan to the whistleblower website WikiLeaks. The documents contained information on more than 700 prisoners detained at Guantánamo Bay, a U.S. airstrike in Afghanistan that killed civilians, over 250,000 sensitive U.S. diplomatic cables, and other Army reports. 

Originally facing 22 charges, including aiding the enemy, which could have brought the death penalty, Manning pleaded guilty to 10 of the charges. In her court martial trials in June 2013, Manning was convicted on 21 of the charges but was acquitted of aiding the enemy. Manning was sentenced to serve 35-years at the maximum-security disciplinary barracks at Fort Leavenworth, Kansas. However, on January 17, 2017, President Barack Obama commuted her sentence to the nearly seven years she had already been held. 

Edward Snowden

In June 2013, Edward Snowden was charged under the Espionage Act of 1917 with “unauthorized communication of national defense information” and “willful communication of classified intelligence with an unauthorized person.” Snowden, a former CIA employee and U.S. government contractor, leaked thousands of classified National Security Agency (NSA) documents dealing with several U.S. global surveillance programs to journalists. Snowden’s actions came to light after details from the documents appeared in The Guardian, The Washington Post, Der Spiegel, and The New York Times.

Two days after his indictment, Snowden fled to Russia, where he was eventually granted asylum for one year after being held at Moscow's Sheremetyevo Airport for over a month by Russian authorities. The Russian government has since granted Snowden asylum until 2020. Now president of the Freedom of the Press Foundation, Snowden continues to live in Moscow while seeking asylum in another country. Snowden and his disclosures have fueled wide debate over mass government surveillance of the people and the balance between the interests of national security and personal privacy.

The Espionage Act of 1917 Today

As evidenced especially by the recent cases of Ellsberg, Manning, and Snowden, several provisions of the Espionage Act of 1917 remain in effect today. These provisions are listed in the United States Code (USC) under Title 18, Chapter 37—Espionage and Censorship.  

As when it was first enacted, the Espionage Act still criminalizes the act of spying for or otherwise aiding an enemy of the United States. However, it has since been expanded to punish people who, for any reason, divulge or share classified government information without permission. Even in the most recent administrations, a handful of people have been charged or convicted under the Espionage Act.

Sources

• “Schenck v. United States.” U.S. Supreme Court (1919). Oyez.org
• “This Day in History — June 15, 1917: U.S. Congress passes Espionage Act.” History.com.
• Edgar, Harold; Schmidt Jr., Benno C. (1973). “The Espionage Statutes and Publication of Defense Information.” 73 Columbia Law Review.
• “Harding Frees Debs and 23 Others Held for War Violations.” The New York Times. December 24, 1921
• Finn, Peter & Horwitz, Sari (21 June 2013). “U.S. charges Snowden with espionage.” Washington Post.
• Mettler, Katie (June 9, 2017). “Judge denies bail for accused NSA leaker Reality Winner after not guilty plea.” Washington Post.