The Espionage Act: When America Jailed People for Speeches

Congress passed the Espionage Act to catch German saboteurs and spies. President Wilson signed it on June 15, 1917, two months after the United States entered World War One. That same day, federal agents raided the office of the No-Conscription League in New York and arrested Emma Goldman and Alexander Berkman for organizing men to resist the draft. Over the next two and a half years the government used the new law, and a set of 1918 amendments, to indict more than 2,000 Americans. Almost all of them were writers, speakers, and organizers. Exactly one was a spy.

To see how a law meant for foreign agents ended up jailing American writers and organizers, start with what it actually said.

What the law actually said

The Espionage Act made it a crime, punishable by death or up to thirty years, to convey information meant to help an enemy or interfere with the armed forces. A second, lower-tier section covered anyone who made a false statement intended to obstruct military recruitment, or who tried to cause insubordination in the ranks: a $10,000 fine and twenty years. The Postmaster General got the power to pull any newspaper or pamphlet he judged treasonous out of the mail.

A year later, on May 16, 1918, Congress widened the net. The Sedition Act amendments made it a federal crime to use “disloyal, profane, scurrilous, or abusive language” about the government, the Constitution, the flag, or the uniform of the Army or Navy. A man could now go to prison for language alone, whether or not the words he used were true, and whether or not he meant anyone any harm.

Who it was actually used against

The historian Harry Scheiber counted more than 2,000 indictments and 1,055 convictions under the two laws between 1917 and 1919. Only one person was ever convicted of the kind of espionage the law was named for. Lothar Witzke, a German naval officer caught organizing sabotage on American soil, was convicted by an Army military commission at Fort Sam Houston on August 16, 1918, tried under military law, not the Espionage Act. He was sentenced to hang. Wilson commuted the sentence to life imprisonment in 1920, and Coolidge later pardoned him; he was released and deported to Berlin in September 1923. The rest of the 1,055 convictions were socialists, pacifists, immigrants, and one Indiana labor organizer running for president from a prison cell.

Schenck, Debs, and “clear and present danger”

Two of the Supreme Court cases that decided whether any of this was legal came from the same winter, written by the same justice. On March 3, 1919, in Schenck v. United States, Oliver Wendell Holmes wrote for a unanimous Court:

The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.

The test that followed ran for the next fifty years:

The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.

Charles Schenck had mailed leaflets to draftees urging them to resist induction. The conviction stood.

One week later, on March 10, 1919, Holmes wrote for a second unanimous Court in Debs v. United States, applying the same standard to uphold Eugene Debs’s ten-year sentence for a speech opposing the war. The Socialist Party Debs led had opposed the war from the country’s entry into it, a position that cost the party members, cost Debs his freedom, and gave the Justice Department its clearest target. Both convictions leaned on a test built around a hypothetical panic in a crowded theater to punish men who had said, in public, that a war was wrong.

Holmes changes his mind

Eight months later the same justice reversed course, in dissent. On November 10, 1919, in Abrams v. United States, a 7-2 Court upheld the conviction of Russian immigrants who had thrown leaflets from a New York rooftop denouncing American intervention against the Bolsheviks. Holmes dissented, joined by Louis Brandeis, and wrote the sentence later courts leaned on harder than anything he had written in Schenck:

But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas,that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out.

The dissent did nothing for the Abrams defendants, who were sentenced to three to twenty years, with deportation to Russia awaiting some of them after release; Wilson granted most of them clemency in 1921. Holmes’s argument took decades to become the law of the land.

What the war left behind

Congress repealed the 1918 Sedition Act amendments on December 13, 1920, once the war and the panic that came with it had passed. The original 1917 Espionage Act was left standing and remains federal law today. In 1920, Roger Baldwin, Crystal Eastman, and Albert DeSilver founded the American Civil Liberties Union directly out of the wartime prosecutions, with Helen Keller among its first members. Emma Goldman, arrested the day the Espionage Act took effect and sentenced to two years for opposing the draft, was deported to Russia aboard the USAT Buford on December 21, 1919, along with 249 other people the government judged too radical to keep.

Fifty years to a higher bar

The Court did not adopt anything close to Holmes’s Abrams standard until June 9, 1969, in Brandenburg v. Ohio, a case about a Ku Klux Klan rally rather than a labor hall. The per curiam opinion overruled Whitney v. California outright and set a bar the Espionage Act era never had to clear: the government may punish advocacy of force or lawbreaking only when it is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Fifty years after Schenck, mailing a leaflet against the draft stopped being enough on its own.

Still on the books

The original Espionage Act itself never went away, and prosecutors still reach for it. Daniel Ellsberg was indicted under it on December 30, 1971, for giving the Pentagon Papers to the New York Times and the Washington Post; a federal judge dismissed every charge on May 11, 1973, after government misconduct came out, including a break-in at Ellsberg’s psychiatrist’s office. Army intelligence analyst Chelsea Manning was convicted of Espionage Act violations, among other charges, in July 2013 and sentenced to 35 years; President Obama commuted most of the remaining sentence, and Manning walked out of Fort Leavenworth on May 17, 2017. WikiLeaks founder Julian Assange, indicted under the Espionage Act in 2019, pleaded guilty to a single count of it in a Northern Mariana Islands courtroom on June 26, 2024 and was sentenced to time served.

A law passed to catch spies in one war has outlived that war by more than a century, and the prosecutions it is best remembered for were never about spying at all.