Espionage Act of 1917: Eugene Debs, Schenck and the Mere Retention Clause

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The Espionage Act of 1917 was written as the United States entered World War I and Woodrow Wilson asked Congress for press censorship. The Senate rejected that provision 39 to 38, but Postmaster General Albert Burleson gained the power to bar publications from the mail, bankrupting magazines by revoking their second-class rates. The law's vague ban on causing insubordination or obstructing recruiting sent Eugene V. Debs to prison for 10 years over a speech in Canton, Ohio, and he won nearly a million votes for president in 1920 from his cell in Atlanta. Filmmaker Robert Goldstein got 10 years for The Spirit of '76, a Revolutionary War film that showed British atrocities while Britain was an American ally.

In Schenck v. United States in 1919, Oliver Wendell Holmes upheld a conviction for antidraft leaflets, creating the clear and present danger test and the line about falsely shouting fire in a crowded theater. After criticism from Harvard law professor Zechariah Chafee, Holmes dissented in the Abrams case later that year. The 1950 McCarran Internal Security Act, passed over Harry Truman's veto, made mere retention of national defense information a crime, removing the need to prove intent to harm. The episode follows the act through Daniel Ellsberg and the Pentagon Papers, the Obama administration's record number of leak prosecutions, and Julian Assange's 2024 guilty plea in a federal courtroom in Saipan.

• The 1918 Sedition Act amendments banned disloyal, profane or abusive language about the government, the Constitution or the flag.
• Attorney General A. Mitchell Palmer's raids rounded up suspected radicals, and Emma Goldman was deported to Russia.
• Ellsberg's case ended in a mistrial after government wiretapping and a break-in at his psychiatrist's office.
• Chelsea Manning received 35 years before Barack Obama commuted the rest of her sentence, and Reality Winner received over five years.
• Defendants cannot raise a public interest defense or tell the jury why they leaked.