Literature Review of the Espionage Act of 1917 and the Sedition Act of 1918
Nicholas Skibinski
History 297: History Colloquium
November 30, 2016
"I hereby declare upon my word of honor that I have neither given nor received
unauthorized help on this work."
Abstract
This paper examines the academic scholarship written about the Espionage Act of 1917
and the Sedition Act of 1918. Over the course of the past century, scholars such as Zechariah
Chafee Jr., Donald Johnson, Geoffrey Stone have examined this topic. The constitutionality of
these acts, the censorship of newspapers they enabled, the figures responsible for enforcing these
acts, and the victims of these acts are all subjects of works explored in this paper. Opinions
among both scholars and the general public shifted back and forth, advocating for and against it
at different times during the first few decades after their passage. But, after a thirty year gap in
the literature from the nineteen sixties to the nineteen nineties, all the works released after this
gap condemn the Espionage and Sedition Acts. However, for decades, the literature on the
Espionage and Sedition Acts reflected contemporary perceptions on national security and free
speech.
Skibinski 1
The debate between advocates of national security and of free speech is one that has
continued throughout American history. Shortly after the United States entered the First World
War, legislation was passed that gave the US government powers of censorship to protect
national security. These were the Espionage Act of 1917 and the Sedition Act of 1918. This
paper will examine the literature written about the Espionage and Sedition Acts, with sources
from as early as 1919 and as recently as 2014. Throughout the twentieth century and the early
twenty first century, opinions on the debate between security and free speech shifted. In the
literature written during the first fifty years after these acts were passed, opinions shifted
drastically to reflect the times. However, after that, while opinions on security and free speech
continued to shift, the literature presents a consistent view of the Espionage and Sedition Acts.
The Espionage Act of 1917 was a piece of legislation passed by the United States after
entering World War One, and the Sedition Act of 1918 was an amendment introduced later. The
Espionage Act initially made it a felony to interfere with military operations, foster disloyalty, or
obstruct recruitment during wartime. The Sedition Act broadened the Espionage Act’s powers,
making it a felony to write disloyal or abusive language about the US government, Constitution,
or military. Opponents of the war, critics of the military or war bonds, protesters who advocated
for peace, and any other dissidents could be prosecuted and imprisoned. Challenges to the
constitutionality of these acts took a debate between advocates of free speech and of national
security to federal courts. The Supreme Court of the United States ruled in a case in 1919,
Schenck v. United States, that censorship could be constitutional as long as the speech posed a
“clear and present danger.”1 While the Sedition Act was repealed in 1921, the Espionage Act is
still in place, and the ruling “clear and present danger” set an important precedent for free speech
1
349.
Zechariah Chafee Jr., Free Speech in the United States (London: Oxford University Press, 1941),
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cases throughout the twentieth and twenty first centuries. However, even before the Sedition Act
had been repealed, literature had been written about it.
Thomas F. Carroll’s 1919 article “Freedom of Speech and of the Press in War Time: The
Espionage Act” is the oldest work on the Espionage Act.2 It was written before the Sedition Act
was passed, as that act is not mentioned in the article. The intent behind this article was to
support and justify the Espionage Act. It argues that, in spite of criticism, the Espionage Act is
constitutional, and is also necessary in the midst of the war. Carroll states “The freedom of the
press is not unlimited, but is limited by the protective right of the community.”3 This reflects the
general opinion on the Espionage Act, and the Sedition Act as well, during the time in which
they were enacted.
However, there was an especially notable work published around this time that disagreed
with the opinion accepted by most scholars and the general public in 1919. That work was
Zechariah Chafee Jr.’s Free Speech published in 1920.4 Chafee was a law professor at Harvard
and examined the constitutionality of the Espionage and Sedition Acts as Carroll did. However,
he argued that the founding fathers did not support any sort of censorship. He also focused on a
ruling by Justice Oliver Holmes in the first important Supreme Court case on the Espionage and
Sedition Acts, Schenck v. United States. In an unanimous vote by the Justices, they upheld the
constitutionality of the Espionage and Sedition Acts. However, Holmes offered an important
clarification to when censorship is constitutional: "To courageous, self-reliant men . . . no danger
flowing from speech can be deemed clear and present, unless the incidence of the evil
Thomas Carroll, “Freedom of Speech and of the Press in War Time: The Espionage Act”
(Michigan Law Review, 1919).
3
Carroll, pp. 664.
4
Chafee, Zechariah Jr. Free Speech. London: Oxford Press, 1920.
2
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apprehended is so imminent that it may befall before there is opportunity for a full discussion.”5
In spite of the heavy criticism he received, Chafee argued in favor of free speech and opposed
the Espionage and Sedition Acts, because he believed the best way to combat dissidents was to
treat them with fairness.
The next work on the acts is a 1938 doctoral dissertation: A History Of National
Espionage Legislation And Its Operation In the United States During The World War written by
Chester R. Milham.6 Milham was a history student who wrote this work in the years right before
the Second World War broke out. Milham argues the importance of pre-war espionage in
generating a demand for legislation and that the federal government drafted various pieces of
legislation, including the Espionage Act, before war had been officially declared. As the war
went on and more pieces of legislation were passed, President Woodrow Wilson was given more
and more power and that “Before the close of the war the President was, under Congressional
authority, an almost absolute dictator.”7 Openly critical stances of the Espionage and Sedition
Acts, and the administration that passed them, were more openly accepted by this point than
Chafee’s Free Speech had been in 1920.
The perceptions over time of Chafee’s Free Speech and its 1941 revised edition Free
Speech in the United States provide insight into the historiography of the Espionage and Sedition
Acts.8 In 1920, when Chafee first published his Free Speech, it was poorly received by scholars
and the general public alike.9 Open criticism of the Espionage and Sedition Acts was unpatriotic.
5
Chafee, Free Speech, pp. 349.
Milham, Chester. “A History of National Espionage Legislation and its Operation in the United
States during the World War.” PhdD diss., University of Southern California, 1938.
7
Milham, pp. 372.
8
Chafee, Zechariah Jr. Free Speech in the United States. London: Oxford Press, 1941.
6
Corwin, Edward S. “Freedom of Speech and Press under the First Amendment: A Résumé.”
Review of Free Speech by Zechariah Chafee. The Yale Law Journal 30, no. 1 (November 1920): 48-55;
Hall, James P, review of Free Speech by Zechariah Chafee. Harvard Law Review 34 (1921): 691-693.
9
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Chafee’s work caused such an outcry that a group of Harvard alumni, supported by the Justice
Department, tried to get him fired from his teaching position at Harvard. It was only due to the
support of the president of the university that Chafee was able to retain his position. However, a
couple of decades later when the Second World War was looming, Chafee felt that he should
release a new edition of his work. And so, in 1941, he published Free Speech in the United
States. Unlike the first edition, this work was warmly received. Both the scholarly community
and the general public were receptive to the book.10 This shift in reception was not exclusive to
opinions in academic works. Both popular opinion and the opinion of the government had
changed. The administration during the Second World War was not as harsh with dissidents as
the administration during the First World War, although the Japanese-American internment
camps served as one notable exception. However, this did not last. During the inquisition against
Communist sympathizers by Senator Joseph McCarthy in the early 1950s, Chafee’s views
became unpopular once more.11 McCarthy even added Chafee to a list of dangerous individuals
because of his beliefs. This lasted for a few years, but McCarthy eventually lost his support and
fell into obscurity. Meanwhile, Chafee passed away a few years later in 1957, and he and his
work were widely admired at the time of his death.12 The perception of Chafee and his work
provides excellent insight on the perceptions of the Espionage Act and the Sedition Acts from
1920 to the late 1950s.
From this point on, every book on the Espionage and Sedition Acts was critical of them,
including Donald Johnson’s 1962 article “Wilson, Burleson, and Censorship in the First World
10
Cushman, Robert E, review of Free Speech by Zechariah Chafee. American Political Science
Review 36 (February 1942): 136-138. Barron, William T, review of Free Speech by Zechariah Chafee.
Virginia Law Review 55 (February 1942): 573-575.
11
Kirk, Russell, review of The Blessings of Liberty by Zechariah Chafee. University of Pennsylvania
Law Review 105, no. 2 (1956): 290-293.
12
Wertheimer, John. “In Retrospect: Freedom of Speech: Zechariah Chafee and Free Speech
History.” Review of Freedom of Speech by Zechariah Chafee. The Johns Hopkins University Press 22,
no. 2 (June 1994): 365-367
Skibinski 5
War.”13 Johnson’s work focused on the roles of individuals in the censorship enabled by the
Espionage and Sedition Acts. Postmaster General Albert Burleson and Solicitor of the Post
Office William Lamar were the two focuses of this article. In order to stifle criticism of the
government and military, they used the power given to them to allow post office workers to
search through the mail and to refuse to mail any material they deemed suspect. Their main
targets were left-leaning newspapers and circulations, and they were able to shut down
publication of many such works. There were a few that avoided this fate, but the threat of
censorship and the destruction of their business shutting down forced many newspapers to censor
themselves. However, many private individuals were targeted as well, and scandalous contents
included in the mail could be sent to Washington for purposes unrelated to national security.
Johnson’s work criticizes Burleson and Lamar, along with the legislation that gave them the
power to censor whomever they pleased, and Congress and President Wilson who were
responsible for enabling these men. This is different from prior works because it focused on
individuals related to these laws, rather than examining the legality or broad instances of
censorship.
There is a thirty year gap in the literature here, although there does not seem to be any
reason for this beyond a simple lack of interest. However, access to new information prompted
Stephen Kohn’s 1994 work American Political Prisoners: Prosecutions under the Espionage
and Sedition Acts.14 Kohn was a lawyer, and one who was interested in matters of free speech.
American Political Prisoners documents the prison sentences of many dissidents who were
imprisoned by the Espionage and Sedition Acts. Kohn sued the government for access to
Johnson, Donald. “Wilson, Burleson, and Censorship in the First World War.” The Journal of
Southern History 28 (February 1962): 46-58.
14
Kohn, Stephen. American Political Prisoners : Prosecutions Under the Espionage and Sedition
Acts. Westport, Ct: Greenwood Publishing Group, Inc., 1994.
13
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previously unavailable records including “work orders, medical records, prison letters, medical
reports on prisoners who died of abuse, and Department of Justice memoranda on why prisoners
were arrested.” Using these sources, Kohn is able to paint a picture of how the victims of the
Espionage and Sedition Acts were treated while they were imprisoned. He paints a harsh picture
of the treatment of these prisoners and the conditions they faced. Whereas prior works had
focused on the acts themselves and how they were used, this monograph shows who was targeted
by the Espionage and Sedition Acts by recounting personal accounts of people convicted under
these acts.
In 1996, journalism graduate school student Matthew M. Matuszak presented a master’s
thesis titled Newspaper Editorial Support for Freedom of Expression during World War I.15 This
work examines the role of newspapers in the public understanding of the Espionage and Sedition
Acts. Seven newspapers were analyzed based on their reactions to nine events: the passing of the
Espionage Act, the passing of the Sedition Act, and seven major court cases tied to those acts.
This was the first examination of self-censorship by the press, rather the enforced censorship in
Johnson’s article. While there was a great deal of coverage of the passage of the acts, there was
little coverage of the court cases that Matuszak argues was caused by self-censorship done in
fear of prosecution by the Espionage and Sedition Acts. And Matuszak concludes that the press
was consistently critical of the infringement of free speech the Espionage and Sedition Acts
constituted early on, but were scared into silence after a number of leftist newspapers were
prosecuted.
Scott Merriman’s 2000 work "’An Intensive School of Disloyalty’: The C.B. Schoberg
Case under the Espionage and Sedition Acts in Kentucky during World War I” the author
Matuszak, Matthew. “Newspaper Editorial Support for Freedom of Expression During World War
I.” Master’s thesis, San Jose State University, 1996.
15
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examines a group of Kentucky natives who are charged under the Espionage and Sedition Acts.16
Their charges were based on false wiretap recordings, but they were still tried and imprisoned.
Another factor that made this case unique was that the Kentucky natives were having a private
conversation that was believed to be critical of the government, rather than being an attempt to
sway public opinion. This conviction goes against the standard that sedition must pose a clear
and present danger that Justice Holmes set, and while this is a minor case it is one closely
connected to one of the central arguments of these acts. Merriman labels this case as showing the
most forceful use of the Espionage and Sedition Acts, and heavily criticizes the acts and the trial
that saw these men falsely imprisoned.
The next work in the literature is Geoffrey R. Stone’s 2004 work Perilous Times: Free
Speech in Wartime from the Sedition Act of 1798 to the War on Terrorism.17 It looks at six
instances in US history where the freedom of speech was challenged, and that includes the
Espionage Act of 1917 and the Sedition Act of 1918. Stone is a law teacher, and approaches the
Espionage and Sedition Acts on their constitutionality. Stone places emphasis on understanding
free speech in wartime, and how it pushes the United States to implement measures it normally
would not. And Stone believes those measures are not only unnecessary, they are
unconstitutional. This analysis is much closer to the work of Chafee than anything else in the
literature, and presents the Espionage and Sedition Acts against other periods of censorship
throughout United States history.
In 2014 Scott Bennett, a professor of twentieth century United States history, and Charles
Howlett, a professor of education, compiled a collection of primary sources titled Antiwar
Merriman, Scott. “"An Intensive School of Disloyalty": The C.B. Schoberg Case under the
Espionage and Sedition Acts in Kentucky during World War I.” The Register of the Kentucky Historical
Society 98 (Spring 2000):179-204.
17
Stone, Geoffrey. Perilous times : Free Speech in Wartime from the Sedition Act of 1798 to the
War on Terrorism. New York: W. W. Norton, 2004.
16
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Dissent and Peace Activism in World War I America.18 This work uses primary sources to show
the evolution of the United States peace movement throughout the First World War. Bennett and
Howlett state “In retrospect, World War I peace activist and antiwar dissent... transformed the
American peace movement… [what] emerged in 1914 was more committed to peace and justice,
more grassroots, more progressive, more secular, more female-centric, and more oriented toward
direct action.”19 Thus, Bennett and Howlett, while criticizing the Espionage and Sedition Acts,
conclude that they allowed the American peace movements to grow and evolve. This work is the
only one that examines the peace movements that were affected by the Espionage and Sedition
Acts, rather than individuals.
In this paper, ten works written over the span of almost a century were examined. A wide
number of factors were examined, from the constitutionality of the Espionage and Sedition Acts,
to the newspapers written in response to significant events tied to these acts, and to the effect
these acts had on dissidents. By analyzing Chafee’s Free Speech in the United States, it can be
seen that the scholarly community and general public were passionately supportive of the
Espionage and Sedition Acts during the First World War and early 1920s and also during the
early 1950s. However, during the Second World War and after the 1960s, the scholarship
appears to consistently criticize the Espionage and Sedition Acts. While opinion shifted a
number of times during Chafee’s lifetime, the scholarship shows that opinions on the Espionage
and Sedition Acts were constant in the years after Chafee’s death. Although, there does appear to
be a significant gap in the literature that does not seem to have an obvious explanation. Most
likely, scholars simply were not interested in the Espionage and Sedition Acts during that time.
18
Scott Bennett and Charles Howlett. Antiwar Dissent and Peace Activism in World War I America.
(University of Nebraska: University of Nebraska Press, 2014).
19
Bennett and Howlett, pp. 33.
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While the debate between advocates of national security and advocates of free speech continues,
the debate on the Espionage and Sedition Acts has come to a conclusion.
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Bibliography
Barron, William T, review of Free Speech by Zechariah Chafee. Virginia Law Review 55
(February 1942): 573-575.
Carroll, Thomas. “Freedom of Speech and of the Press in War Time: The Espionage Act.”
Michigan Law Review 17, no. 8 (June 1919): 621-665.
Chafee, Zechariah Jr. Free Speech. London: Oxford Press, 1919.
_________. Free Speech in the United States. London: Oxford Press, 1941.
Corwin, Edward S. “Freedom of Speech and Press under the First Amendment: A Résumé.”
Review of Free Speech by Zechariah Chafee. The Yale Law Journal 30, no. 1 (November
1920): 48-55.
Cushman, Robert E, review of Free Speech by Zechariah Chafee. American Political Science
Review 36 (February 1942): 136-138.
Hall, James P, review of Free Speech by Zechariah Chafee. Harvard Law Review 34 (1921):
691-693.
Johnson, Donald. “Wilson, Burleson, and Censorship in the First World War.” The Journal of
Southern History 28 (February 1962): 46-58.
Kirk, Russell, review of The Blessings of Liberty by Zechariah Chafee. University of
Pennsylvania Law Review 105, no. 2 (1956): 290-293.
Kohn, Stephen. American Political Prisoners : Prosecutions Under the Espionage and Sedition
Acts. Westport, CT: Greenwood Publishing Group, Inc., 1994.
Matuszak, Matthew. “Newspaper Editorial Support for Freedom of Expression During World
War I.” Master’s thesis, San Jose State University, 1996.
Merriman, Scott. “‘An Intensive School of Disloyalty’: The C.B. Schoberg Case under the
Espionage and Sedition Acts in Kentucky during World War I.” The Register of the
Kentucky Historical Society 98 (Spring 2000):179-204.
Milham, Chester. “A History of National Espionage Legislation and its Operation in the United
States during the World War.” PhdD diss., University of Southern California, 1938.
Stone, Geoffrey. Perilous Times : Free Speech in Wartime from the Sedition Act of 1798 to the
War on Terrorism. New York: W. W. Norton, 2004.
Skibinski 11
Wertheimer, John. “In Retrospect: Freedom of Speech: Zechariah Chafee and Free Speech
History.” Review of Freedom of Speech by Zechariah Chafee. The Johns Hopkins
University Press 22, no. 2 (June 1994): 365-367.