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The Militant, 13 December 1941

War Reinstates 1917 Espionage Act

Was Used in Last War to Attack Civil Liberties

Actual Wording of Statute Does Not Apply to Labor Groups;
But Judicial Decisions Include Their Regular Activities Under It

From The Militant, Vol. V No. 50, 13 December 1941, pp. 1 & 6.
Transcribed & marked up by Einde O’Callaghan for ETOL.


The declaration of war on Japan by Congress on Monday brought automatically into operation the war-time legislation known as the “Espionage Act”, first enacted June 15, 1917.

In his letter of April 25, 1917, President Wilson promised that “I shall not expect or permit any part of this law” to “be used as a shield against criticism”. What followed, however, scarcely bore out Wilson’s words.

Most of the Espionage Act deals with such subjects as espionage by enemy agents and the protection of military secrets. However, Section 3 of Title 1 of the Act served the purpose of prosecuting political opponents of the first World War. That section, establishing three new offenses, reads as follows:

“(1) Whoever, when the United States is at war, shall willfully make or convey false reports or false statements with intent to interfere with the operation or success of the military or naval forces of the United States or to promote the success of its enemies,

“(2) and whoever, when the United States is at war, shall willfully cause or attempt to cause insubordination, disloyalty, mutiny, or refusal of duty, in the military or naval forces of the United States,

“(3) or shall willfully obstruct the recruiting or enlistment service of the United States, to the injury of the service or of the United States, shall be punished by a fine of not more than $10,000 or imprisonment for not more than twenty years, or both.”

It was under this section that most of the anti-war cases were prosecuted and convicted during the first World War, including the cases of Eugene V. Debs and the I.W.W’s. headed by Bill Haywood.

What the Act Did

The wording of this section is broad enough in itself to draw within it most political opposition to the government and its war policies; even broader, however, has been the judicial interpretations of this wording.

So broad, indeed, became the meaning of this section as a result of the decisions handed down by judges in the 1917-1920 prosecutions, that it became impossible for anyone to say or write anything against the war without being prosecuted. ,

The original law makes punishable words or acts Which “wilfully” or by “intent” interfere with the war. The judicial interpretations applied this so broadly that words or acts, regardless of their intent, came under the act.

Another section of the Espionage Act which was used against anti-war groups is Title XII, which makes non-mailable any matter violating the Act. Under this, by mere notice of the Postmaster and without judicial process, issues of newspapers and magazines found objectionable by him may be barred from the mails. The higher courts granted the Postmaster wide discretion in the use of this broad power.

Raids were made during the last war on the offices of anti-war organizations under the authority of Title XI of the Act, which authorizes the issue of search warrants for the seizure of property used as the means of committing a felony, which would include violations of the Act.

Nearly 2,000 prosecutions and other judicial proceedings took place during the last war, the most important of them under the Espionage Act.

Here are some examples of what happened under the Espionage Act, as summarized by Zecharia Chafee, Jr., in his authoritative work, Free Speech in the United States:

“It became criminal to advocate heavier taxation instead of bond issues, to state that conscription was unconstitutional though the Supreme Court had not yet held it valid, to say that the sinking of merchant vessels was legal, to urge that a referendum should have preceded our declaration of war, to say that war was contrary to the teachings of Christ. Men have been punished for criticising the Red Cross and the Y.M.C.A., while under the Minnesota Espionage Act it has been held a crime to discourage women from knitting by the remark, ‘No soldier ever sees these socks’ ...

“Judge Van Valkenburgh, in U.S. vs. Rose Pastor Stokes, even made it criminal to argue to women against a war, by the words, ‘I am for the people and the government is for the profiteers,’ because, said the judge, what is said to mothers, sisters and sweethearts may lessen their enthusiasm for the war, and ‘our armies in the field and our navies upon the seas can operate and succeed only so far as they are supported and maintained by the folks at home.’”

These examples make clear what judicial decisions have construed the Espionage Act to be. The words of the statute itself, when reasonably interpreted, can apply only to those who incite or attempt to incite actual interference with the conduct of the war, but these decisions brought all criticism under prosecution.

Supreme Court Decision

Nor was this true only of the lower courts in the first World War period. Typical of the outlook of the U.S. Supreme Court was the 7–2 decision in Pierce vs. U.S.

The court upheld the conviction, under the “false statements” clause of the Espionage Act, of three Socialists for being local distributors in Albany, New York, of The Price We Pay, a pamphlet by St. John Tucker, a prominent Episcopal clergyman.

In upholding their conviction the majority decision, written by Justice Pitney, culled out of the long pamphlet three passages, five sentences in all, as constituting “false statements.” These were:

1. “Into your homes the recruiting officers are coming. They will take your sons of military age and impress them into the army ... And still the recruiting officers will come; seizing age after age, mounting up to the elder ones and taking the younger ones as they grow to soldier size.”

2. “The Attorney General of the United States is so busy sending to prison men who do not stand up when the Star Spangled Banner is played, that he has no time to protect the food supply from gamblers.”

3. “Our entry into it was determined by the certainty that if the allies do not win, J.P. Morgan’s loans to the allies will be repudiated, and those American investors who bit on his promises would be hooked.”

As proof that statement 3 was false, Justice Pitney stated:

“Common knowledge – not to mention the President’s Address to Congress of April 2, 1917, and the Joint Resolution of Congress of April 6 declaring war – would have sufficed to show that the statements as to the causes that led to the entry of the United States into the war against Germany were grossly false ...”

Thus the highest court in the land, by an appeal to the President’s Message as sufficient authority on the facts, condemned as criminal an assertion that the war was imperialist in character.

Supplements in 1918

The original Espionage Act of June 15, 1917 was not the only legislation of this kind during the last war. Eleven months later, on May 16, 1918, at the insistence of Attorney-General

Gregory, the original Act was supplemented by an amendment, sometimes called the Sedition Act of 1918. To the three offenses already listed under Section 3 of Title I of the Espionage Act, the amendment added nine more offenses, as follows:

  1. Saying or doing anything with intent to obstruct the sale of United States bonds;

  2. Uttering, printing, writing, or publishing any disloyal, profane, scurrilous, or abusive language, or language intended to cause contempt, scorn, contumely or disrepute as regards the form of government of the United States;
  3. Or as regards the Constitution;
  4. Or the flag;
  5. Or the uniform of the Army or Navy;
  6. Or any language intended to incite resistance to the United States or promote the cause of its enemies;
  7. Urging any curtailment of production of any things necessary to the prosecution of the war;
  8. Advocating, teaching, defending, or suggesting the doing of any of these acts;
  9. Words or acts supporting or favoring the cause of any country at war with us.

This 1918 amendment was repealed on March 3, 1921, leaving the original Act operative as soon as the United States entered the second World War.

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