“Clear and Present Danger”: The Legacy of the 1917 Espionage Act in the United States by Petra DeWitt

Petra DeWitt’s “Clear and Present Danger”: The Legacy of the 1917 Espionage Act in the United States provides an overview of the political history (with a good amount of legal history) of the Espionage Act of 1917 as well as demonstrating the law’s ongoing historical relevance throughout the twentieth century and into the twenty-first century.[1] DeWitt argues the assertion of federal power over speech and the press enabled by the Espionage Act (and its amendment, the Sedition Act of 1918) made for a radical change in American society—policing essential rights that had been seldomly regulated in US history at that point, and if so only by states and municipalities—and “adding a new dynamic by denying Americans the right to expression opposition to the conflict.” DeWitt provides background on the legislative process and the congressional debates that brought the Espionage Act into law. Introduced by the Justice Department, several congressmen expressed concerns about the original draft’s provisions on press censorship and only a few expressed worries over chilling the free speech rights of citizens (namely William Mason (R-IL) and Edward Browne (R-WI)). As a result, the final law passed in June 1917 was aimed at active enemy agents and saboteurs but did not attempt to “suspend the freedom of speech and press.”[2] DeWitt goes on to describe enforcement of the law by the Justice Department’s Bureau of Investigation and some examples of court cases brought under the Espionage Act. The passage of the Sedition Act in May 1918, amending the Espionage Act, went farther in repressing free speech by targeting “disloyal, profane, scurrilous, or abusive language” about the US government, its military, or anything that could be argued as being helpful to US enemies. The article then turns to the federal courts and the lawsuits testing the protections of the First Amendment, most notably Schenck v. United States which unanimously upheld the constitutionality of the Espionage Act and promulgated the “clear and present danger” standard, and thus began Supreme Court’s jurisprudence defining the boundaries of freedom of speech.[3] DeWitt concludes by tracing the legal evolution of speech rights versus the security state up to the present day, describing further developments in national security laws and First Amendment jurisprudence, including controversies during the Cold War, the Pentagon Papers, and the more recent challenges to the US security state by whistleblowers like Chelsey Manning and Edward Snowden. To support her argument, DeWitt uses a wide array of sources: historiographic sources from the work of other historians and academics, original source materials including the text of laws, court cases, and Congressional records, and contemporary accounts from newspapers and magazines. Overall, DeWitt demonstrates that a national crisis tests US institutions, and the resolution of conflicts arising out of a crisis (often settled by the Supreme Court) will either reify existing norms and laws or will slightly modify them to established new norms and laws moving forward.

[1] Petra DeWitt, “”Clear and Present Danger”: The Legacy of the 1917 Espionage Act in the United States,” Historical Reflections / Réflexions Historiques 42, no. 2 (2016): 115-33. http://www.jstor.org/stable/44631075.

[2] DeWitt, 116-118.

[3] Schenck v. United States, 249 US 47 (1919).