This is a summary of Matthew Wills's article "How the Espionage Act Became a Tool of Repression," originally published by JSTOR Daily. Read the full piece at the link.
When Congress passed the Espionage Act in June 1917, two months after the United States entered the First World War, its stated purpose was narrow: to guard military secrets and protect the machinery of mobilization. What followed was something its authors had not intended and, by many accounts, did not foresee — one of the most repressive periods in American history. More than two thousand people were prosecuted for alleged disloyalty, most of them not for espionage in any ordinary sense but for what they said, wrote, or handed out.
A law nobody agreed on
As the legal scholar Geoffrey R. Stone has documented, the Act as passed was in fact narrower than what the Justice Department originally wanted — the administration's first proposal reached further, toward press censorship and the targeting of anarchists, and President Wilson considered the final version a disappointment. Yet the statute that emerged was so ambiguous that, as one senator remarked, he could not find two colleagues who agreed on what it meant. Into that ambiguity stepped federal judges, who read the law broadly and handed down strikingly harsh sentences.
Ten years for a letter, twenty for a leaflet
The results were severe and often grotesque. Rose Pastor Stokes was sentenced to ten years for writing that "no government which is for the profiteers can also be for the people" — a remark in a letter to a newspaper. D. T. Blodgett received twenty years for distributing a leaflet urging voters to reject congressmen who had supported conscription. The Reverend Clarence Waldron was convicted for circulating Christian-pacifist literature. The filmmaker Robert Goldstein was prosecuted over The Spirit of '76, a movie about the Revolutionary War, on the theory that depicting British soldiers unfavorably could undermine a wartime ally.
Learned Hand's dissenting logic
Against this current, Judge Learned Hand tried to draw a line. Ruling in the case of the radical journal The Masses, he distinguished ordinary political agitation — however heated — from "direct incitement to violent resistance," and held that only the latter could be punished. His decision was overturned on appeal, The Masses was suppressed, and Hand's career suffered for a time. But his reasoning endured. Decades later it helped shape the Supreme Court's 1969 decision in Brandenburg v. Ohio, which finally gave inflammatory political speech strong constitutional protection.
Still on the books
The Espionage Act was never repealed. It remains law, and it remains in use: in 2011 Chelsea Manning was charged under the same 1917 statute, drawing a 35-year sentence later commuted. The through-line Wills traces — from the pacifists and socialists of 1917 to the whistleblowers of the twenty-first century — is a reminder that a law's reach is set less by the intentions of the people who write it than by the willingness of the people who enforce it.
— Summarized from Matthew Wills, "How the Espionage Act Became a Tool of Repression," JSTOR Daily. Drawing on Geoffrey R. Stone, "Judge Learned Hand and the Espionage Act of 1917: A Mystery Unraveled," University of Chicago Law Review 70, no. 1 (2003): 335–358.
