The idea of spies stealing military secrets and handing them off to foreign enemies isn’t just something out of Hollywood movies.
There are very real threats to national security, and the United States government seeks to not only deter but prosecute those that reveal classified information in any way. This is why we have the Espionage Act.
What was the Espionage Act?
The Espionage Act is a law passed by the United States Congress in 1917, just two months after the United States entered World War I against Germany.
The Espionage Act, which A. Mitchell Palmer, the United States Attorney General at the time and the Justice Department he oversaw, enforced and made it a crime for any person to promote the success of the country’s enemies or to convey information intended to interfere with the armed forces’ war effort.
The penalty for violating the act was harsh. Any person convicted would receive a 20-year sentence and a fine of $10,000 (equivalent to approximately $222,000 in 2022).
Repealing the Sedition Act
Some aspects of the new laws were repealed in 1920. For example, the Sedition Act of 1918 empowered the government to prohibit many forms of speech, including “any disloyal, profane, scurrilous, or abusive language about the form of government of the United States.”
This also extended to “the flag of the United States, or the uniform of the Army or Navy.” The Sedition Act was repealed just two years later, with President Woodrow Wilson giving clemency to most people convicted under the act up to that point.
Is the Espionage Act Constitutional?
There is the argument that the Espionage Act is unconstitutional because it actively suppresses freedoms delineated in the 1st Amendment.
The 1st Amendment enumerates many freedoms, including the freedom of speech, and reinforces the idea that Americans have certain liberties. However, there is a grey area over how many of these rights and liberties apply to Americans in wartime.
For example, the United States has a draft process and Selective Service, where citizens of the right sex and age are expected to be put forward for active duty in a time of conflict. This is the case despite possible moral objections to the conflict.
This legal consideration was an important part of the case of Schenck v. United States, brought before the Supreme Court in 1919. There was an appeal against the ruling against Schenck at the time because of the potential unconstitutional nature of the new act.
However, the Supreme Court upheld the ruling because while limits on the 1st Amendment are not constitutional in peacetime, it was a different matter while the nation was at war.
There is still debate over the language used and the implications of the act for free speech outside of times of war. The act may not contain the same clear prohibition of speaking out against the government as the Sedition Act, but there are still freedom of speech issues.
While the acts were brought in to protect the nation during a time of war, there are many cases of the Espionage Act being used against citizens in peacetime.
The Espionage Act Payed a Key Role In the Cold War
Several cases have gone to court over the last century, with the government prosecuting many people suspected of being spies for other nations or political activists leaking documents to spread the word on the actions of the country’s armed forces. This includes many Soviet spies charged for handing over documents in the Cold War.
Another case was the leak of the Pentagon Papers by Daniel Ellsberg and Anthony Russo in June 1971. In New York Times Co. v. United States, the Supreme Court ruled by a majority of the justices that the government could prosecute their employers, the Times and the Post, for violating the Espionage Act by publishing the documents.
Meanwhile, Daniel Ellsberg and Russo were freed based on the irregularities seen by the court in the government’s case.
Famous 21st Century Cases Involving the Espionage Act
In modern times, the focus has shifted to those that leak information to the media and put national security at risk, such as famous whistleblowers. This includes the following high-profile cases, some of which are still of interest and have led to mixed opinions on the men involved.
In June 2013, the government charged Edward Snowden with “unauthorized communication of national defense information” and “willful communication of classified intelligence with an unauthorized person” under the Espionage Act.
This occurred after releasing documents that revealed the NSA’s PRISM Surveillance Program details.
Another controversial figure is Julian Assange, the WikiLeaks founder. He was charged with breaking the Espionage Act after seeking classified information in May 2013. This case has continued to make headlines as he sought asylum in Ecuador and has been linked with other charges.
Then there is Daniel Hale. Hale was a veteran and military contractor indicted under the charges of leaking classified documents. He passed the information on a drone program to a journalist in this case.
The Espionage Act Today
The nature of the Espionage Act has changed over time depending on the enemy of the nation and the administration in charge.
It went from a vital protective tool in wartime in the world wars to a means of pursuing potential spies in the Cold War and, finally, a way to defend national security from leaks to the media. Whether fully constitutional or not, there are sure to be further cases in years to come.