Sedition and Domestic Terrorism

Two months after America's entry into World War I, Congress enacted the Espionage Act of 1917. The act made it a crime, among other things, willfully to make false statements with the intent to interfere with the war effort; willfully to cause or attempt to cause dissension in the armed services; or willfully to obstruct the recruitment or enlistment services of the United States. Violations were punishable by fines of up to $10,000, prison sentences of up to twenty years, or both.

Not satisfied that the 1917 act sufficiently protected the interests of the nation, Congress eleven months later enacted the Espionage Act of 1918 (ch. 75, §§ 3–4, 40 Stat. 553), which declared it criminal, among other things, for any person to say anything with intent to obstruct the sale of war bonds; to utter, print, write, or publish any disloyal, profane, scurrilous, or abusive language intended to cause contempt or scorn for the form of government of the United States, the Constitution, the flag, or the uniform of the army or navy; to urge the curtailment of production of war materials with the intent to hinder the war effort; or to utter any words supporting the cause of any country at war with the United States or opposing the cause of the United States. The 1918 act was repealed in 1921, but the Espionage Act of 1917 remains in force "when the United States is at war."

Most of the approximately two thousand Espionage Act prosecutions initiated during World War I involved the provisions of the 1917 act. Mere statements of opinion critical of the war were treated as statements of fact and then condemned as "false" because they were inconsistent with presidential or congressional declarations. Moreover, through the use of the doctrines of bad tendency and constructive intent, the courts transformed the prohibitions against causing insubordination and obstructing recruiting into prohibitions against criticizing the war and the draft generally. Any such criticism, the courts reasoned, might have the tendency to induce insubordination or refusals of induction. That the speaker or author did not intend to bring about such consequences was irrelevant, for every person, the courts maintained, is held to intend the natural and foreseeable consequences of his acts. Under the twin doctrines of bad tendency and constructive intent, even the most innocuous criticism could be deemed a crime (Albers v. United States, 263 F. 27 (9th Cir. 1920), rev'd, 256 U.S. 706 (1921); Shaffer v. United States, 255 F. 886 (9th Cir. 1919); Kirchner v. United States, 255 F. 301 (4th Cir. 1918); United States v. Nagler, 252 F.217 (W.D. Wis. 1918)). The one shining exception to the dominant view was the opinion of Judge Learned Hand in the Masses case, in which Hand interpreted the act as applying only to speech that expressly advocated unlawful conduct (Masses Publishing Co. v. Patten, 244 F. 535 (S.D.N.Y. 1917), rev'd, 246 F. 24 (2d Cir. 1917)).

The constitutionality of the Espionage Act of 1917 was first addressed by the Supreme Court in Schenck v. United States, 249 U.S. 47 (1919). Charles Schenck, the secretary of the Socialist Party, was convicted under the 1917 act for helping to prepare and distribute a leaflet sharply critical of the war and the draft. Although using the "clear and present danger" rubric for the first time in Schenck, the Supreme Court gave short shrift to Schenck's First Amendment argument, holding that the conviction was constitutionally permissible in light of Schenck's "intent" and the "tendency" of the leaflet. In effect, the Court construed the First Amendment as having little if any real impact in this context, and in an unbroken series of decisions in the next few years the Court upheld a stream of convictions under the 1917 and 1918 acts (Frohwerk v. United States, 249 U.S. 204 (1919); Debs v. United States, 249 U.S. 204 (1919); Abrams v. United States, 250 U.S. 616 (1919)).

Beginning with Abrams, however, Justices Oliver Wendell Holmes and Louis Brandeis launched a powerful attack upon the Court's analysis. From Abrams onward, Holmes and Brandeis argued persistently and eloquently that the First Amendment sharply curtailed the power of government to suppress seditious expression. Under the First Amendment, they maintained, such expression may be restricted only if it posed a clear and present danger of harm. Although Holmes and Brandeis failed to persuade their brethren, these dissenting opinions laid the foundation for the contemporary understanding of the First Amendment. Examples were Abrams (Justice Holmes dissenting), Schaefer v. United States, 251 U.S. 466 (1920) (Justice Brandeis dissenting), and Pierce v. United States, 252 U.S. 239 (1920) (Justice Brandeis dissenting).