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The Espionage Act of 1917 marked the beginning of the “one of the most repressive periods in American history.” During World War I, more than 2,000 dissenters were prosecuted under the Act for “allegedly disloyal, seditious or incendiary speech.”  This may have surprised the members of Congress who had passed what became the first federal legislation against seditious expression in 120 years.

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Geoffrey R. Stone points out that the legislators did not intend the law to have the “severely repressive effect attributed to it by the federal courts.” The Act became a judicial assault on free speech and the First Amendment, powered in part by what a Department of Justice official later called a popular rush for “indiscriminate prosecution” of dissenters and the “wholesale repression and restraint of public opinion.”

As Stone details it, the act was substantially revised during contentious and divisive Congressional debate. Ultimately, it was toned down from the original wording provided by the Justice Department. Originally a wide-ranging brief for press censorship and against anarchists, it ended up “a carefully considered enactment designed to deal with very specific military concerns.” Woodrow Wilson was extremely disappointed with the result.

Yet, as one senator declared: “I have not found any two Senators who agree upon what [the Act] means.” Most federal judges, however, seemed to assume that the punishments meted out under it should be severe.

Stone gives some examples. Rose Pastor Stokes: sentenced to ten years for saying “I am for the people and the government is for the profiteers.” D.T. Blodgett: sentenced to twenty years for circulating a leaflet urging voters in Iowa not to reelect a congressman who voted for conscription. Reverend Clarence H. Waldron: convicted for distributing a pamphlet stating that Christians were forbidden to fight. (Stone notes, “The government was especially aggressive in its prosecution of clergymen who supported peace or conscientious objection.”) Robert Goldstein: convicted for producing a motion picture about the American Revolution that portrayed the British (allies in the fight against Germany in 1917) in a negative light.

Federal District Judge Learned Hand, however, was less inclined to panic and/or reaction. As he wrote to his wife at the time, “there are times when the old bunk about an independent and fearless judiciary means a good deal.” As Stone tells it, Hand boldly ruled that the radical journal The Masses could not be banned under the Act. He argued that the cartoons and the poem in question were certainly political agitation, but not “direct incitement to violent resistance.” Congress, he said, “had no such revolutionary purpose in view” as to make every illegal every opinion “that is apt to create a seditious temper.”

Hand’s ruling was promptly overturned and The Masses was ultimately suppressed out of business. Hand, one of the most cited jurists in American legal history, was also denied what many considered a sure promotion to the Court of Appeals, at least until a new administration in 1924. But his “quite brilliant” opinion in Masses Publishing Co v Patten played a big role in influencing the Supreme Court on the issue of free speech and the First Amendment. Indeed, Hand’s argument finally caught up with the high Court in 1969, when the Brandenburg decision protecting inflammatory speech took Hand’s reasoning to law.

“The case cost me something, at least at the time,” Hand wrote, but “I have been very happy to do what I believe is some service to temperateness and sanity.”

This isn’t all history, of course. The Espionage Act is still on the books: Chelsea Manning was charged under it in 2011. Manning’s 35-year sentence was commuted this year. Just this week, a Pentagon analysis concluded that none of the documents Manning released to Wikileaks had any strategic impact on American war efforts.


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The University of Chicago Law Review, Vol. 70, No. 1, Centennial Tribute Essays (Winter, 2003), pp. 335-358
The University of Chicago Law Review