When the Espionage Act was used directly against the press

Last week, I wrote a post on “A Century of Repression,” Ralph Engelman and Carey Shenkman’s new book on press freedom and the Espionage Act of 1917. In doing so, I carelessly asserted, without qualification, that a member of the news media “has never been charged under the law.” What I meant was that a member of the news media has never been charged under the still existing provisions of the Espionage Act that criminalize national security leaks to the press. (Thank you to our close readers for catching that.)

We could deal with my failings as a newsletter writer in a brief clarification, but it’s worth dwelling on the significance of my mistake. It is relevant to the ongoing debate over how the spying laws should interact, if at all, with journalists and journalism.

The fact is, just as members of the anti-Federalist press went to jail under the 1798 Alien and Sedition Acts, many members of the socialist press went to jail under the Espionage Act. But they went to jail for opinion journalism opposed to the Quasi-War with France in the 18th century and World War I in the 20th, not for spilling secrets. In other words, while we in the press freedom community tend to focus on how aggressive leak prosecutions dissuade sources from leaking, we should recall that, until the birth of the modern First Amendment in the wake of those dissident prosecutions, the Espionage Act had been used as a direct tool of censorship against members of the press claimed to be “disloyal.”

The most prominent example is Victor Berger, an Austrian-born Socialist and editor of the Milwaukee Leader, an antiwar newspaper. Under the now-repealed Title XII of the Espionage Act, the government could deem publications “nonmailable” because they urged opposition to American entry into World War I. The postal service revoked the Leader’s second-class mail privileges and blocked first-class mail addressed to the paper, finding that editorials critical of the war effort violated the Espionage Act.

Berger was then charged, tried, and convicted for violating provisions of the Espionage Act criminalizing interference in the war effort, and was sentenced to 20 years in prison by Judge Kenesaw Mountain Landis, known as much for his excellent name as for being the first commissioner of Major League Baseball, who presided over the aftermath of the 1919 Black Sox scandal (and remains controversial for the persistence of the “color line” under his watch).

Over the strenuous dissent of Justices Louis Brandeis and Oliver Wendell Holmes Jr., the Supreme Court upheld the postmaster’s decision in 1920, with Justice John Clarke writing ominously, “The Constitution was adopted to preserve our government, not to serve as a protecting screen for those who, while claiming its privileges, seek to destroy it.” The following year, however, the Supreme Court overturned Berger’s criminal conviction because of prejudicial statements about Germans made by Judge Landis.

There are several other cases along these lines, including, for instance, Frohwerk v. U.S., part of the trio of cases in 1919 upholding the Espionage Act’s application to left-wing opponents of the war (the others are Shenck v. U.S. and Debs v. U.S.). Jacob Frohwerk was convicted for writing articles in the Missouri newspaper Staats Zeitung to the “general effect that we are in the wrong and are giving false and hypocritical reasons for our course” in World War I.

Similarly, in Schaefer v. U.S., decided in 1920, three editors of the Philadelphia Tageblatt were convicted under the Espionage Act for articles alleged to contain false reports that illegally “promot[ed] the success of the enemies of the United States” and obstructed the draft. The Supreme Court again upheld their convictions over dissents by Brandeis and Holmes, with Brandeis writing, “In peace, too, men may differ widely as to what loyalty to our country demands; and an intolerant majority, swayed by passion or by fear, may be prone in the future, as it has often been in the past, to stamp as disloyal opinions with which it disagrees.”

This history starkly illustrates the fraught environment in which Congress was legislating — that is, global war and the first red scare. Even though these “disloyal” press cases couldn’t happen today (could they?), that they happened at all shows how suboptimal politically that era was for sound lawmaking. And that’s the legacy we confront today with the still operative provisions of the Espionage Act governing national defense leaks.

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The Technology and Press Freedom Project at the Reporters Committee for Freedom of the Press uses integrated advocacy — combining the law, policy analysis, and public education — to defend and promote press rights on issues at the intersection of technology and press freedom, such as reporter-source confidentiality protections, electronic surveillance law and policy, and content regulation online and in other media. TPFP is directed by Reporters Committee attorney Gabe Rottman. He works with RCFP Staff Attorney Grayson Clary and Technology Press Freedom Project Fellow Emily Hockett.