The Espionage Act
Americans consider freedom of speech one of the most important rights guaranteed by our Constitution. The First Amendment states that "Congress shall make no law... abridging the freedom of speech... ." But is this right absolute? Are there any forms of speech that the government can prohibit? The Espionage Act of World War 1 tested the limits of this right.
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Background
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The Espionage Act was preceded by escalating hostilities between the United States and Germany during WW1. In 1914, the war broke out in Europe between the Central Powers led by Germany and the Allies led by Great Britain. At first the United States remained neutral, but as the war dragged on it gave weapons and ships to the Allies. In retaliation, Germany started attacking American ships and sent saboteurs and spies to the United States. Angry at these actions, the United States declared war on Germany in April 1917.
Enactment
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After the declaration of war against Germany, the U.S. government enacted the Espionage Act. Passed by Congress and signed by President Wilson on June 15, 1917, it prohibited the dissemination of information that was designed to interfere with U.S. military activities or to help America's enemies. It also prohibited attempts to cause mutiny or insubordination in the U.S. military or to interfere with military recruitment.
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Enforcement
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The Espionage Act was used to suppress anti-war and anti-government publications and to arrest dissidents. In 1918 Eugene Debs, the former presidential candidate for the Socialist Party, was arrested under the Espionage Act for giving a speech that "obstructed recruiting". The U.S. mail service also refused to mail certain socialist and radical publications which it deemed in violation of the act, such as the journal Industrial Workers of the World (IWW) and The Masses magazine.
Constitutionality
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The Espionage Act was eventually challenged in court for violating the Constitution. In the case Schenck v. United States it was argued that the act violated the First Amendment. In 1919 the Supreme Court ruled that the law did not violate the Constitution. The court held that the First Amendment was not absolute and that Congress could prohibit conduct that was a "clear and present danger" to the security of the United States. The court also explained that in times of war, people do not have the same free-speech rights that they usually have in times of peace. As of September 2009, no other decision by the Supreme Court has judged the constitutionality of the Espionage Act.
Present Day
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A modified version of the Espionage Act is in existence today, but its ability to punish enemies of the state are much more limited. In 1921 portions of the Espionage Act were repealed but some parts remain codified today in federal law (see 18 USC 793-794). The U.S. Supreme Court has ruled that the government may not prevent publication of information but may punish publication after the fact if it constitutes incitement of imminent unlawful conduct that is likely to occur. However, there is an exception for publication of secret information about the location of military forces in wartime and the design of military weapons, which the government may act to prevent.
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