The Espionage and Sedition Acts

The search for the enemy within the United States and the frenzy to reduce opposition to the Great War resulted in several attempts to curtail expressions, outlaw the speaking of German, and suspend the publication of any newspaper critical of the government. States, such as Missouri, usually preferred to deal with dissent in their own way through gubernatorial proclamations and municipal orders and insisted on minimal federal government interference.¹ Congress’ passage of the Espionage Act in 1917 and the Sedition Act of 1918 transformed this citizen-to-government relationship.  

Article III, Section 3 of the American Constitution defines treason as taking up arms against the United States and “giving…Aid and Comfort” to the enemy. But until 1917, few acts addressed vocal dissent or opposition to government. The notable exceptions were the Alien and Sedition Acts in 1798, the suspension of Habeas Corpus during the American Civil War, and the 1911 Defense Secrets Act. Although “Congress rarely attempted to place limits upon the freedoms of speech and press,” America’s entry into the Great War in April 1917 resulted in the government expanding its control over the daily lives of ordinary citizens.²

President Woodrow Wilson believed that Americans might be suspicious of why the country went to war after re-electing him in November 1916 on the promise to keep the nation out of the conflict. Wilson was particularly concerned about the press and how it could hinder the war effort. His administration supported several bills that eventually culminated in the drafting of the Espionage Bill.³ However, passage was not guaranteed and debate over press censorship provisions was particularly contentious.  Several congressmen and senators feared that zealous patriotism would contribute to legislation restricting freedoms not only during war, but also during times of peace.⁴

The final bill that Congress approved on June 12, 1917 and sent to the President for signature did not include a press censorship provision, but addressed spying, flying over forbidden sites, sabotage, interrupting foreign commerce, seizure of arms, and deliberate interference with the military. Title I Section 3 of the act restricted speech only if the speaker or writer “willfully” made “false statements with intent to interfere with the operation or success of the military or naval forces…[or] willfully cause or attempt to cause insubordination, disloyalty, mutiny, or refusal of duty, in the military or naval forces…, or…willfully obstruct the recruiting or enlistment service.” Under Title 12 the postmaster general could suspend the delivery of any publication or mail only when it suggested “treason, insurrection or forcible resistance to any law of the United States.” Only if convicted of such deliberate intent could the accused receive a fine up to $10,000 and up to twenty years in federal prison.⁵

Enforcement and fears of widespread disloyalty led to the passage of the Sedition Act in May 1918. The Sedition Act served as an amendment to the Espionage Act and outlawed the willful speaking or publishing of “any disloyal, profane, scurrilous, or abusive language about the form of government of the United States,…the Constitution…the military or naval forces…the flag…, or the uniform of the Army or Navy” with the intent “to incite…resistance to the United States, or to promote the cause of its enemies,” or to bring “the United States into contempt, scorn,…, or disrepute.”⁶ Several Congressmen still expressed concerns because this legislation banned dissent and criticism of any kind. However, a majority believed that the original Espionage Act was too weak, invited broad interpretation, contributed to dangerous spies escaping, and enticed vigilante behavior. Thus, more restrictive legislation was necessary for the duration of the war.⁷

Enforcement was a challenge because police, grand juries, district attorneys, judges, and postmasters had to distinguish between unintentional expressions and willful intent in an environment of ever increasing fear and paranoia. The Justice Department analyzed thousands of accusations of public dissent and accumulated enough condemning information for federal grand juries to hand down more than 2,000 indictments between 1917 and 1919, resulting in 1,055 convictions.⁸ Among the defendants were several Socialists, including Eugene V. Debs and Kate Richards O’Hare. German-Americans, such as Congressman Victor Berger from Minnesota, as well as labor agitators and members of the Industrial Workers of the World, most prominently William “Big Bill” Haywood were also included.⁹ Fifteen publications also lost mailing privileges for printing obstructive or disloyal matter, including the socialist Masses and the Milwaukee Leader.¹⁰

The majority of defendants were ordinary people who had expressed personal opinions without any intent to interfere in the war effort or to aid the enemy, including several Missourians. For example, August Weist, the deputy collector for St. Louis, allegedly stated “Our boys have no damned business being over there….The government has no damned business conscripting our boys over here.” August Scheuring, a German-born resident in St. Louis, allegedly stated that “the Kaiser will win the war,” while traveling in a streetcar seated in front of uniformed soldiers.¹¹

According to the Attorney General’s 1919 report, judgments varied with the majority of defendants receiving fines or jail sentences, but “in some districts the sentences imposed…were unduly severe.” Cases prosecuted “in only thirteen of the eighty-seven federal districts accounted for almost one-half of the total number of prosecutions under the Espionage and Sedition Acts.”¹² Enforcement also varied between the two U. S. District Courts in Missouri. In Kansas City, U.S. Attorney Francis Wilson distinguished between private conversation and published statements that influenced public opinion. He prosecuted only if evidence would lead to certain guilty verdicts. He gained convictions and lengthy prison sentences for Carl Gleeser and Jacob Frohwerk, the publisher and editor of the Missouri Staats Zeitung a German-language newspaper in Kansas City, who published articles that allegedly aided the enemy and interfered with the American military.¹³ Rose Pastor Stokes, the Russian-born editor of the socialist Jewish Daily News, who in published speeches and letters to editors argued that the government supported profiteers not its citizens was also convicted.¹⁴

Despite having one of the thirteen federal districts with the highest prosecutions and a sizeable German-American population, few of those accused in St. Louis received lengthy prison sentences. While U. S. Attorney Arthur L. Oliver ardently prosecuted those indicted by the grand jury, Eastern District Judge David P. Dyer, realized the frivolous nature of most accusations and punished the majority of the convicted with minimal fines for their “outspokenness." Dyer sent to prison only those who had truly intended to interfere with the war effort.¹⁵ August Heidbreder, a wealthy farmer in Gasconade County, who suggested that President Wilson should be stuffed into a canon and shot out to sea, received a $100 fine, but Thomas Carnell, a Socialist, who gave a speech arguing that any man who went into the army was a fool, received a two-year sentence at Fort Leavenworth.¹⁶

U. S. Attorney General Thomas Gregory and his successor A. Mitchell Palmer, recognized that “intense patriotism” and lack of caution led to “unjustified arrests and prosecution” as well as judgments under the acts. After reconsidering most cases in 1919 based on the facts presented during trials, they successfully recommended reduction of sentences or presidential pardons.¹⁷ 

Although Congress allowed the Sedition Act to expire in 1921, the Espionage Act remains in effect today. Lawsuits brought against the government resulted in the U. S. Supreme Court defining the limits of speech. In Schenck v. United States (1919) the court upheld the constitutionality of the Espionage Act by arguing that “the question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.”¹⁸ This interpretation transformed the act into a long-term tool to limit dissent and protect the nation’s secrets.¹⁹

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¹ Petra DeWitt, Degrees of Allegiance: Harassment and Loyalty in Missouri’s German American Community during World War I (Athens: Ohio University Press, 2012); and Christopher C. Gibbs, The Great Silent Majority: Missouri’s Resistance to World War I (Columbia: Missouri University Press, 1988).
² Geoffrey R. Stone, Perilous Times: Free Speech in Wartime: From the Sedition Act of 1798 to the War on Terrorism (New York: W. W. Norton & Company, 2004), 36-44. Mark E. Neely, Jr., The Fate of Liberty: Abraham Lincoln and Civil Liberties (New York: Oxford University Press, 1991), 51-74, 161-65, 167-84. “An Act to Prevent the Disclosure of National Defense Secrets,” 36 Stat. 1804 (1911). Donald Johnson, “Wilson, Burleson, and Censorship in the First World War” Journal of Southern History 28 (February 1962): 46, 46-58. Paul L. Murphy, World War I and the Origin of Civil Liberties in the United States (New York: W. W. Norton & Company, 1979), 39, 245, 248.
³ Murphy, Origins of Civil Liberties, 24-25.
⁴ Doc. No. 29, 30, and 31 in Vol. 1, and Doc. No. 61, in Vol. 2, Civil Liberties in Wartime: Legislative Histories of the Espionage Act of 1917 and the Sedition Act of 1918, William H. Manz, ed., vol. 1 (Buffalo, NY: William S. Hein & Co., 2007). See also David M. Kennedy, Over Here: The First World War and American Society (New York: Oxford University Press, 1980), 26; and David M. Rabban, Free Speech in its Forgotten Years (Cambridge: Cambridge University Press, 1997), 250-51.
⁵ “An Act to punish acts of interference with the foreign relations, the neutrality, and the foreign commerce of the United States, to punish espionage, and better to enforce the criminal laws of the United States, and for other purposes,” Pub. L. No. 24, Ch. 30, 40 Stat, 217 (1917), Doc. No. 1, in Vol. 1, Civil Liberties in Wartime.
⁶ “An Act to amend section three, title one, of the Act entitled ‘An Act to punish acts of interference with the foreign relations, the neutrality, and the foreign commerce of the United States, to punish espionage, and better to enforce the criminal laws of the United States, and for other purposes,’ approved June fifteenth, nineteen hundred and seventeen, and for other purposes,” Pub. L. No. 150, Ch. 75, 40 Stat, 553-54 (1918), Doc. No. 2 in Vol. 1, Civil Liberties in Wartime.
⁷ Doc. No. 70, 73, and 75, in Vol. 2, Civil Liberties in Wartime. Peter Galison, “Secrecy in Three Acts,” Social Research 77 (Fall 2010), 948; Murphy, Origin of Civil Liberties, 83.
⁸ Harry N. Scheiber, The Wilson Administration and Civil Liberties, 1917-1921 (Ithaca, NY: Cornell University Press, 1960), 46-47, 61-63.
⁹ Kennedy, Over Here, 83, 85-86, 289-90. David L. Sterling, “In Defense of Debs: The Lawyers and the Espionage Act Case,” Indiana Magazine of History 83 (March 1987): 17-42. Philip M. Glende, “Victor Berger’s Dangerous Ideas: Censoring the Mail to Preserve National Security during World War I,” Essays in Economic & Business History 26 (2008): 5-20.
¹⁰ Johnson, “Censorship in the First World War,” 48.
¹¹ United States v. August Weist, Docket No. 6911; and United States v. August Scheuring, Docket No. 6661, both in Record Group 21, Records of the U. S. District Court, Eastern District of Missouri, Criminal Cases, 1864-1966, National Archives, Central Plains Region, Kansas City, Missouri. 
¹² Amnesty and Pardon for Political Prisoners, “Statement of Mr. A. Mitchell Palmer, Attorney General of the United States,” Hearings Before the United States Senate Subcommittee of the Committee on the Judiciary, January 19, 1921, 66th Congress, S. J. Res. 171 (Washington D.C.: Government Printing Office, 1921), 77, Doc. No. 99, in Vol. 2, Civil Liberties in Wartime. Walter Nelles, Espionage Act Cases with Certain Others on Related Points (New York: National Civil Liberties Bureau, 1918).
¹³ Gleeser received a five-year and Frohwerk a ten-year sentence in federal prison at Leavenworth. The president commuted both to 1 year and 1 day on June 17, 1919. “Statement of Mr. A. Mitchell Palmer,” 186, Document 99, in Civil Liberties in Wartime.
¹⁴ Francis W. Wilson, April 13, 1918, to William Saunders, folder 287, C2797, Missouri Council of Defense Papers, The State Historical Society of Missouri, Columbia Research Center; “Indict Mrs. Rose Stokes,” Kansas City Star, April 23, 1918, 1; “Stokes Jury Still Out,” Kansas City Star, May 23, 1918, 1; “Stokes Case Dismissed on Prosecutor’s Recommendation,” St. Louis Post-Dispatch, November 17, 1921.
¹⁵ Of seventy-four grand jury indictments, nineteen were convicted by a jury, only three received two-year sentences at Fort Leavenworth. DeWitt, Degrees of Allegiance, 100-105.
¹⁶ “A Bland Man Nabbed,” Unterrified Democrat, May 31, 1917. “Local and Personal,” Unterrified Democrat, July 5, 1917. United States v. Thomas Carnell, Docket No. 6465, Record Group 21, District Court, Criminal Cases, National Archives, Central Palins Region, Kansas City, Missouri. “Erhält zwei Jahre Zuchthaus,” Westliche Post, November 1, 1917; “Trial in February for Men Charged with Disloyalty,” St. Louis Post-Dispatch, December 20, 1917.
¹⁷ Amnesty and Pardon for Political Prisoners, Doc. No. 99, Vol. 2, Civil Liberties in Wartime. Scheiber, Wilson Administration, 23-26, 43, 45-46, 48; Murphy, Origin of Civil Liberties, 192; and Rabban, Free Speech, 328.
¹⁸ Schenk v. United States, 249 U.S. 47 (1919).
¹⁹ Zechariah Chafee, Jr., Free Speech in the United States (Cambridge: Harvard University Press, 1941), 51-52; Galison, “Secrecy in Three Acts,” 941-74; Scheiber, Wilson Administration, 28.