[How the Espionage Act of 1917 is the most important yet least
understood law threatening freedom of the press in modern American
history.]
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A CENTURY OF REPRESSION: THE ESPIONAGE ACT AND FREEDOM OF THE PRESS
 
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Ralph Engelman, Carey Shenkman
January 3, 2023
Truthdig
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_ How the Espionage Act of 1917 is the most important yet least
understood law threatening freedom of the press in modern American
history. _

Spies, Kieran Lamb / CC BY-SA 2.0

 

_The following is adapted from A Century of Repression The Espionage
Act and Freedom of the Press
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Ralph Engelman and Carey Shenkman, published in October by University
of Illinois Press._

The Espionage Act of 1917 is the most important yet least understood
piece of legislation threatening the free flow of information in
American history. To date no single volume systematically traces the
century-long life of the law—spanning the two World Wars, the Cold
War and the War on Terror—and reveals the scope of its threat to
freedom of expression. Its very name is a misnomer, since its scope
extends well beyond spying. Indeed, this volume does not examine use
of the Act against espionage as commonly understood: spying for a
foreign government. Rather it reveals the law’s multi-faceted and
increasingly widespread use to limit free speech, a free press and
freedom of information in regard to US foreign and military policy.
Yet the name of the law taints prosecutions of political dissidents
and whistleblowers with an aura of disloyalty and national betrayal.
The Espionage Act provides a lens through which to view a century of
American political history. An examination of its trajectory provides
new perspectives on American liberalism, the FBI and the civil
liberties movement.

Since the First World War, successive administrations deployed the
Espionage Act for varied political purposes, both domestic and
foreign. Some prosecutions resulted in sensational trials; others were
little noticed or understood. Indeed, the Act has existed under the
public radar for significant lengths of time. It lives in the shadows
of virtually every military conflict and foreign policy controversy in
the past century. Consider this volume the biography of a law with
far-reaching implications for freedom of expression in times of war.
It entails the stories of targets of Espionage Act prosecutions—of
Eugene Debs, Samuel Morison, Daniel Ellsberg, Chelsea Manning, Thomas
Drake, Julian Assange, Edward Snowden, and Reality Winner, among
others. The playbook of Espionage Act prosecutions is laden with the
settling of political scores, character assassination, illegal
break-ins, and prosecutorial misconduct. Targets include government
critics and internal whistleblowers—as well as the journalists who
covered them. Many Espionage Act prosecutions collapsed; others
resulted in draconian sentences. Yet all defendants paid a high price
for their ordeals in their personal and professional lives.  

“If there should be disloyalty, it will be dealt with with a firm
hand of stern repression,” Woodrow Wilson declared on April 2, 1917,
in his address to a joint session of Congress calling for a
declaration of war.[i] Wilson issued that warning to German Americans
and, by extension, to others opposed US entry into the European
conflict. The Espionage Act of 1917 would become the principal tool
for repression of opposition to the US war effort—and a powerful
weapon of the federal government against freedom of expression for
dissidents and whistleblowers in the century that followed. To be
sure, as its name suggested, the Espionage Act established harsh
penalties for spying for a foreign enemy in wartime. However, the
Wilson administration deployed the Act to control information and
public opinion in light of widespread opposition to US participation
in the war. The amendment known as the Sedition Act of 1918
strengthened the Espionage Act as a blunt instrument for repression of
political dissent, particularly of the leaders and publications of the
socialist, syndicalist and Black movements of the period. It
proscribed “disloyal, profane, scurrilous or abusive language”
about the American war effort and system of government.[ii] It
established a system to censor publications, administered by the US
Post Office. Thus, at the urging of the Wilson administration,
Congress enacted the first federal sedition legislation since the
expiration and widespread repudiation of the Alien and Sedition Acts
of 1798. The Espionage Act would remain a vehicle for government
suppression of information and criticism regarding US foreign and
military policies for the century that followed.

_SINCE THE FIRST WORLD WAR, SUCCESSIVE ADMINISTRATIONS DEPLOYED THE
ESPIONAGE ACT FOR VARIED POLITICAL PURPOSES, BOTH DOMESTIC AND
FOREIGN. SOME PROSECUTIONS RESULTED IN SENSATIONAL TRIALS; OTHERS WERE
LITTLE NOTICED OR UNDERSTOOD. INDEED, THE ACT HAS EXISTED UNDER THE
PUBLIC RADAR FOR SIGNIFICANT LENGTHS OF TIME. IT LIVES IN THE SHADOWS
OF VIRTUALLY EVERY MILITARY CONFLICT AND FOREIGN POLICY CONTROVERSY IN
THE PAST CENTURY._

From the outset, the law was applied to targets both small and large.
Take, for example, the case of the hapless Robert Goldstein, producer
of a film entitled _The Spirit of ’76_.[iii] Goldstein was the
owner of an apparels shop that supplied costumes to early Hollywood
movies, including D.W. Griffith’s _The Birth of a Nation_. Aspiring
to do for the American Revolution what Griffith had done for the Civil
War and Reconstruction Era, Goldstein sunk $200,000 into a silent epic
film with massive sets and a cast of hundreds about the War of
Independence. It included signature moments like the signing of the
Declaration of Independence, a subplot about efforts to install King
George’s mistress as “Queen of America,” and graphic images of
British atrocities. The film opened in May 1917, just weeks after US
entry into the war. Goldstein was charged under the newly minted
Espionage Act with attempting to harm the war effort by portraying the
US’s chief ally in a critical light, and sentenced to ten years’
imprisonment. Hollywood was being enlisted in the war effort, and even
negative images of an ally set in the distant past would not be
countenanced. Goldstein was released, penniless, after three years. He
sought to restart his film career, first in the US and then in
succession of European countries. Both Goldstein and his film
eventually disappeared from sight. Goldstein was last heard from in
1935, writing from Germany, where he could not afford to pay nine
dollars to renew his passport. He is presumed to have perished in a
concentration camp. No copy of _The Spirit of ’76 _seems to have
survived him.  

If the trial of Robert Goldstein seems arbitrary, the prosecution of
William “Big Bill” Haywood was not. For the business community and
government officials, the radical labor leader was one of the most
hated and feared figures in the nation. Haywood, a former miner and
brawling revolutionary labor leader from the West, was
broad-shouldered, with one dead eye and a scarred face, usually topped
by a black Stetson cowboy hat.[iv] The organization he led, the
Industrial Workers of the World (the IWW, or Wobblies), was as
threatening to authorities as its leader’s persona. Established in
1905, the IWW was the most radical mass labor organization in American
history. At its 1916 convention, the organization added an anti-war
plank to its program of revolutionary syndicalism. “With the
European war for conquest and exploitation raging and destroying our
lives,” its resolution stated, “…we openly declare ourselves the
determined opponents of all nationalistic sectionalism, or patriotism,
and the militarism preached and supported by our one enemy, the
capitalist class.”[v] Based in the western US, the Wobblies were a
powerful force in sectors of the American economy like mining, lumber
and shipping essential to the war effort.  

No wonder, then, that Haywood was tried, in Chicago in 1918, as the
lead defendant together with one hundred other IWW leaders for
violation of the Espionage Act before Judge Kenesaw Mountain Landis
(the future Commissioner of Baseball). All were found guilty, and
Haywood received a 20-year sentence. Released on bail, he saw the US
Circuit Court reject the IWW appeals. Haywood was in poor health,
determined not to return to jail once again, this time possibly for
the rest of his days. On March 31, 1921, disguised with a monocle over
his bad eye and carrying a false passport, he boarded the S.S. Oscar
II, bound for the Soviet Union via Stockholm. After working on an
American-run experimental industrial colony in Western Siberia, making
a speaking tour in Russia and writing his autobiography, Haywood spent
his last years languishing in Moscow at the Hotel Lux, a hotel for
visiting foreign leftists and residence for exiled communists. His
loneliness was tempered by alcohol and occasional visits from old
comrades from home; he died in 1928.

The stories of Robert Goldstein and Big Bill Haywood—their
differences notwithstanding— illustrate the personal cost of being
the target of an Espionage Act prosecution, a recurring pattern down
to our own day. They also suggest the remarkable personalities and
high drama often at play in Espionage Act cases, bringing to mind
Philip Roth’s adage that American reality can trump the fiction
writer’s imagination. This is true of the odyssey of Daniel
Ellsberg and the ordeal of Chelsea Manning. Observe the mild-mannered
Edward Snowden, holed up for months in Moscow’s Sheremetyevo
Airport, after charges were unsealed against him in June 2013 for
violating the Espionage Act by giving the press classified documents
from the NSA. Witness Julian Assange, dragged by British police from
the cramped Ecuadorian Embassy in London in April 2019 to face
extradition to the US on Espionage Act. Lesser-known proceedings would
also have significant ramifications, such as the _Amerasia_ case
following WW II, which proved central to the rise of Senator Joseph
McCarthy. The spate of Espionage Act prosecutions during the Obama and
Trump administrations spawned a new array of targets, among them
beleaguered confidential sources working for the FBI (Donald
Sachtleben, Terry Albury), the CIA (Jeffrey Sterling, John Kiriakou),
the NSA (Reality Winner, Thomas Drake) and the State Department
(Stephen Kim).

Our cast of characters also features a succession of remarkable
defense attorneys who fought Espionage Act cases. Take, for example,
Gilbert E. Roe, the law partner and studious counterpart to Senator
Robert M. “Fighting Bob” La Follette of Wisconsin, who fought the
prosecutions of the_ Masses _and socialist leader Eugene Debs. Roe
was a leader of the Free Speech League, which had previously defended
the First Amendment rights of members of the IWW and Emma Goldman,
among others. Fast-forward a half century to the trial of Daniel
Ellsberg, represented by the disheveled-looking but astute civil
rights attorney Leonard Boudin. Boudin had taken the lead in defending
victims of the McCarthy era; his list of clients ranged from civil
rights leader Paul Robeson and accused spy Judith Coplon to social
activists Dr. Spock and Julian Bond. In contrast, Abbe Lowell, a more
buttoned-up and establishment-connected Washington, D.C., defense
attorney, defended representatives of the American Israel Public
Affairs Committee (AIPAC), and later State Department contractor
Stephen Kim, against Espionage Act charges. And the human rights
attorney Jesselyn Radack, a whistleblower herself, has represented NSA
whistleblowers Thomas Drake and Edward Snowden, and National
Geospatial Intelligence Agency analyst Daniel Hale. A former employee
of the Justice Department, Radack was forced to resign and faced
criminal investigation after she exposed the FBI’s illegal
interrogation in a major terrorism case. The professional histories of
these attorneys, as well as the arguments they articulated in defense
of their clients, underscore the political nature of Espionage Act
cases over the past century.

From the outset, the story of the Espionage Act features a succession
of larger-than-life figures. One of them is Oliver Wendell Holmes Jr.,
the legendary Supreme Court Justice, who embodied the contradictory
views of WW I-era Progressives about freedom of expression in wartime.
Holmes—scion of a prominent Massachusetts family, Harvard-educated,
a Civil War veteran, 77-years-of-age in 1919, with his imposing white
handlebar mustache, ramrod posture and formidable ego—was the
ultimate embodiment of the Boston Brahmin. In 1919, he wrote majority
opinions upholding three convictions under the Espionage Act for,
respectively, an anti-draft flyer, a series of newspaper editorials,
and a speech by Eugene Debs. But a group of young acolytes of the
aging and childless Supreme Court sage mounted a campaign to get
Holmes to reconsider a position that in their view threatened First
Amendment freedoms. Three key figures in this cabal would subsequently
have illustrious careers: Harold Laski as a leader of the British
Labor Party, Felix Frankfurter as a Supreme Court Justice, and
Zechariah Chafee as the preeminent First Amendment scholar of the
20thcentury. The result of their efforts was Holmes’s famous dissent
in _Abrams v. United States _(1919), considered a foundation for
freedom of expression in modern America.  

_WILSON’S JUSTICE DEPARTMENT, WHICH ZEALOUSLY PURSUED ESPIONAGE ACT
PROSECUTIONS WITH THE AID OF THE VIGILANTE AMERICAN PROTECTIVE LEAGUE,
WAS LED BY TWO PROMINENT TRUSTBUSTERS: ATTORNEY GENERAL THOMAS W.
GREGORY AND JOHN LORD O’BRIAN, HEAD OF THE JUSTICE DEPARTMENT’S
WAR EMERGENCY DIVISION._

Holmes was not alone in his inconsistency in regard to the issues
posed by the Espionage Act, the product of the best and brightest
minds of the Progressive legal establishment of the early
20th century. Wilson’s Justice Department, which zealously pursued
Espionage Act prosecutions with the aid of the vigilante American
Protective League, was led by two prominent trustbusters: Attorney
General Thomas W. Gregory and John Lord O’Brian, head of the Justice
Department’s War Emergency Division. O’Brian, the chief enforcer
of the Act, later squared a circle, gaining a reputation as a civil
libertarian in the long and distinguished career that followed his
tenure during WW I. Future liberal attorneys general would be
personally torn by the dilemmas posed by prosecutions under the Act.
Francis Biddle, Justice Holmes’s former law clerk who served as
Franklin D. Roosevelt’s attorney general, was ambivalent about
FDR’s desire during the Second World War to use the Act to prosecute
Colonel Robert McCormick’s _Chicago Tribune _and to threaten the
dissident Black press. And upon stepping down as Barack Obama’s
attorney general, Eric Holder would say his greatest regret was
implicating a reporter in an Espionage Act case. Holder would go on to
call for reform of the Espionage Act and limitation of its potential
application to the media. Hence the drama surrounding the Act takes
place in the internal private struggles of key officials as well as on
the public courtroom stage.

Two important figures emerge from the shadows of the Espionage Act and
the Justice Department’s efforts to stem dissent. In 1917, John Lord
O’Brian hired 22-year-old J. Edgar Hoover to work in the War
Emergency Division as a favor for a politically connected uncle of
Hoover’s. The young Hoover was the product of the conservative
Capitol Hill neighborhood of lower-level civil servants in Washington,
D.C. He had attended night school at George Washington University Law
School, financing his education by working as a clerk at the Library
of Congress. Hoover became head of the Justice Department’s Alien
Enemy Bureau, which administered the requirement that “enemy
aliens”—that is, unnaturalized German and Austro-Hungarians living
in the US—register with the government. The Bureau had the added
authority under the Espionage Act of investigating subversive aliens,
who could be imprisoned without trial, placed in two camps operated by
the War Department, or face deportment. Hoover became a major player
in the Palmer Raids of 1919-1920 in which alien political radicals
were expelled from the US. The colorless but ambitious Hoover, astute
at bureaucratic maneuvering and empire building, had begun his ascent.
He would play an important role in Espionage Act prosecutions through
the 1970s. More generally, the campaign against dissent during WW I,
with the Espionage Act as its centerpiece, had a profound impact on
Hoover’s worldview. The culture of Wilson’s wartime Justice
Department, the association of dissent with treason, provided the
template for the record of repressive actions and violations of civil
liberties during Hoover’s subsequent tenure as director of the FBI.

The Espionage Act also jumpstarted the trajectory of another major
20th-century figure in the struggle over civil liberties in the
20th century. The law propelled the career of Hoover’s civil
libertarian counterpart, Roger N. Baldwin, founder and longtime head
of the American Civil Liberties Union.

Footnotes

[i] Woodrow Wilson, Address delivered at Joint Session of the Two
Houses of Congress,_ _April 2, 1919,_ _65th Cong., 1stSess., Senate
Doc. No. 5, Serial No. 7264, Washington, D.C., 1917.

[ii] Sedition Act of 1918, Pub. L. 65-150, 40 Stat. 553 (1918).

[iii] See Anthony Slide, ed. _Robert Goldstein and ‘The Spirit of
’76 _(New York: Scarecrow Press, 1993); and Michael Selig,
“United States v. Motion Picture Film _The Spirit of’76_: The
Espionage Case of Producer Robert Goldstein (1917),” _Journal of
Popular Film and Television_, 10, no. 3 (April 2013):
168-174, [link removed].

[iv] Peter Carlson, _Roughneck: The Life and Times of Big Bill
Haywood _(New York: W.W. Norton, 1983), 9, 16.

[v] Industrial Workers of the World, “The IWW Position on
War,” [link removed].

_RALPH ENGELMAN is senior professor emeritus of journalism and
communication studies at Long Island University, Brooklyn, and faculty
coordinator of the George Polk Awards. He is the author of Public
Radio and Television in America: A Political
History and Friendlyvision: Fred Friendly and the Rise and Fall of
Television Journalism. CAREY SHENKMAN is a constitutional lawyer and
litigator focusing on freedom of expression, transparency, and
technology. He serves on the panel of experts of Columbia University's
Global Freedom of Expression Program, and consults on media rights
issues before the United Nations and around the world._

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