The First Amendment to the United States Constitution guarantees all persons the right to free speech, among other things. At various times in our history this right has come under fire by actions taken by the government itself. One such time existed at a point in our history when you may not have expected it—the entry into World War I in 1917.
The United States Enters World War I: President Woodrow Wilson was elected to a second term in 1916 by campaigning to keep the U.S. out of the war in Europe. However, a few months after the election he received a message from the German government that announced Germany’s return to unrestricted submarine warfare. This was a dramatic turnaround for the policy that had been in place after the sinking of the RMS Lusitania by a German submarine in 1915 that killed over 1,000 including 128 Americans. Freedom of the seas was an important pillar of the U.S. economy, and the return to unrestricted submarine warfare pushed Wilson to ask Congress for War against Germany. War was declared on April 6, 1917, and a huge outcry in opposition to the war immediately arose. To stifle criticism of war Wilson pressed congress to pass the Espionage Act on June 15, 1917.
The Espionage Act and the Sedition Act Amendment: Under the new law the following became a crime: spreading information with the intent to “interfere with the operation or success of the armed forces of the United States or to promote its enemies’ success” and to make false reports or statements with the intent to “interfere with the operation or success of the military or naval forces of the United States or to promote the success of its enemies when the United States is at war, to cause or attempt to cause insubordination, disloyalty, mutiny, refusal of duty, in the military or naval forces of the United States, or to willfully obstruct the recruiting or enlistment service of the United States.” The penalties ranged from up to thirty years in prison to death. The enforcement of the Act was left largely to the U.S. Attorney General, but an ample amount of authority went to the Postmaster General, who could impound or refuse to forward through the mail any publication that violated the statute. The Act stopped short of censorship of the press, although Wilson believed that censorship of the press should have been included, and said so as he signed it. The Act was amended several times after passage, but the most significant amendment was the Sedition Act of 1918. In the year that followed the Espionage Act, it became apparent that the stringent restrictions to free speech would be difficult to enforce, as wartime violence by various groups arose pitting an attempt by one faction of the population to suppress the free speech of another by taking the law into their own hands. Therefore, the Sedition Act was passed as a virtual amendment to the Espionage Act and forbade “the use of disloyal, profane, scurrilous, or abusive language about the United States government, its flag, or its armed forces or that caused others to view the American government or its institutions with contempt.” This amendment amounted to a vicious assault on the principles of free speech. However, owing to the fact that the war was nearly over when the virtual amendment was passed, there were few prosecutions in its duration, and it was repealed December 13, 1920.
The “Clear and Present Danger” Test: Needless-to-say the law went through many court decisions and a number of them made it to the Supreme Court upon appeal. Prior to the year 1900 most restrictions on free speech were created as a matter of prior restraint, or prohibition in advance. The test the courts generally used at the time was known as the “bad tendency” test, meaning that the speech had the sole tendency to incite or cause illegal activity. In a landmark case, Schenck vs United States, Justice Oliver Wendell Holmes Jr. in writing the unanimous opinion said that by distributing flyers to draft aged men to refuse induction, Schenck and others, were not protected by the First Amendment free speech rights as their actions were in direct violation of the Espionage Act. In this process Holmes also created what became known as the “clear and present danger” test to be applied to outlawed speech by stating that “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.” The difference arises in that the defendant’s actions took place during wartime and not during more normal times of peace. Holmes and fellow Justice Louis Brandeis dissented in the case of Abrams vs United States, as they believed that the clear and present danger test was not properly applied. But for many years it was used in free speech cases and became the standard until the case of Brandenburg vs Ohio in 1969. Brandenburg was a Ku Klux Klan leader in Ohio who in 1964 invited a newspaper reporter to a rally where incendiary speeches were made about the forced deportation of black Americans and Jews among others. The court ruled that the government cannot punish inflammatory speech unless the speech is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” In that nothing directly came of the threats, the court overturned Brandenburg’s arrest and conviction in Ohio and the words “imminent lawless action” supplanted “clear and present danger” as the vital test of freedom of speech.
An abbreviated List of Prosecutions Under the Espionage Act and Amendments:
Eugene V. Debs, a presidential candidate in the 1904, 1908, and 1912 elections was sentenced to ten years in 1918 for a speech that “obstructed recruiting.”
Seven directors of the Watchtower Bible and Tract Society were charged with fostering “insubordination, disloyalty, refusal of duty in the armed forces…” for their book The Finished Mystery published in 1917. Passages from the book stated in so many words that patriotism is not encouraged anywhere in the bible’s New Testament, and that murder in any form is forbidden. They served nine months in a Federal Penitentiary before being released. An appeals court said that they had not received a fair trial, and in May, 1920, the government dropped all charges.
In 1942 before the World War II Battle of Midway, the Chicago Tribune published a story headlined “Navy Had Word of Jap Plan to Strike at Sea.” The truth in all matters was that the Navy had indeed cracked the Japanese Naval code, but as soon as the story came out, the Japanese discovered that their code was compromised and changed it. The newspaper’s publishers were brought before a grand jury for indictment, but the government dropped its case after the battle became a huge victory for the U.S. Navy.
In 1950 Julius and Ethel Rosenberg were convicted of giving nuclear secrets to the Soviet Union, and were executed in 1953.
In June, 1971, Daniel Ellsberg and Anthony Russo were charged with publishing the Pentagon Papers without permission as they were classified. However, the government bungled the case, and the judge dismissed all charges for both defendants.
In 1985 Samuel Loring Morison, a government security analyst, was convicted of giving classified pictures of warships to Jane’s, a British military publisher, when he admitted to the deed by saying that his intent was to inform the public in order to bring about a larger defense budget. At the time that was the first successful prosecution of a government official giving classified information to the press.
In 1985 Jonathan Pollard, a U.S. Navy civilian employee, was convicted of selling classified information to Israel and was sentenced to life in prison.
In 1986 Ronald Pelton, a National Security Agency Analyst, was convicted of spying for the Soviet Union and compromising a top-secret intelligence operation known as Operation Ivy Bells.
In 2010 Stephen Jin-Woo Kim, a contractor for the State Department and a specialist in nuclear proliferation was charged with disclosure of North Korea’s plans to test a nuclear weapon to a reporter for the Fox News Channel. Kim pleaded guilty to one count of the charges and was sentenced to thirteen months in prison.
In 2010 Chelsea Manning, a U.S. Army Private First Class in an intelligence analyst’s capacity in Iraq, leaked classified information about the Iraq War to Wikileaks. She was arrested after telling what she had done to an on-line acquaintance who informed the Army’s Criminal Investigation Division. She was sentence to 35 years in Ft. Leavenworth, but her sentence was commuted by President Obama in 2017.
In June, 2013, Edward Snowden, a National Security Agency contractor, was charged under the Act after releasing documents exposing the NSA’s PRISM program which gathered intelligence information from various global internet companies. His massive leaks were estimated to number between 50,000 and 200,000 documents that exposed the NSA’s world-wide internet surveillance. He fled the U.S. to Hong Kong and then later to Russia where he was granted asylum and became a naturalized citizen in 2022.
In May, 2019, Julian Assange, Wikileaks founder, was charged with “conspiring to unlawfully obtain and disseminate classified information related to the national defense of the United States.” Essentially the charges stemmed from his publishing the documents leaked by Chelsea Manning, a soldier in Iraq. Assange was an Australian citizen (later and Ecuadorian naturalized citizen), and served time in the UK for violating the U.K. Bail Act. He found asylum in the London Ecuadorian Embassy until he had a falling out with Ecuadorian officials and was turned over to British authorities.
On June 8, 2023, Donald Trump, at that time a former President of the United States, was indicted on 31 counts of “willful retention of national defense information.” After a grand jury subpoenaed the documents that belonged to the National Archives, the FBI confiscated them from his Mar-a-Lago home in Florida and found more documents including those pertaining to nuclear weapons.
Conclusions: The Espionage Act was designed to quiet down resistance to the U.S. entry into World War I, a foreign war, and the corresponding forced conscription of young men. Its actual application had a much wider usage as religious leaders, a presidential candidate, publishers, and even a former (at the time) president of the United States were all charged. Whistle blowers and others who had positive intentions were also prosecuted. What is still missing are acceptable standards that define what documents can and cannot be classified. This would be especially true for those many cases the government brought forth during a time when the country was not at war. In certain cases, national defense was not compromised by the defendant’s actions, but government officials perhaps were embarrassed particularly by their failure to pay careful enough attention to confidential information.
Sources: History.com, The Sedition and Espionage Acts Were Designed to Quash Dissent During WWI, by Dave Roos, November 21, 2025.
Wikipedia, The Espionage Act of 1917.
Wikipedia, The Sedition Act of 1918.
Wikipedia, The Clear and Present Danger Test.