Stand up For Snowden, 1917 Espionage Act and the First Strike at Free Speech


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Edward Snowden is charged with federal crimes under the 1917 Espionage Act. This act was the first permanent challenge in American history to the First Amendment freedom of speech rule. There was an earlier attempt at quelling free speech — the highly controversial Sedition Act — but that temporary act expired in 1800.

Edward Snowden took millions of defense documents and released them to the press. For the past three years, “Snowden’s revelations” about how the secret government works have been front page news many times. Edward Snowden is currently living in Russia due to circumstances of his escape from United States jurisdiction.

With an Oliver Stone movie being released to memorialize his experiences, and with the Obama administration coming to its natural end, a movement to pardon Edward Snowden is gaining traction.

1917 ESPIONAGE ACT EARLY HISTORY

In the spring of 1917, just after the United States entered The Great World War, the Espionage Act was passed in the House 260-107 and in the Senate 77-6. A majority of both parties supported it, except in the House where Republicans voted slightly against the act 86-95. June 15, 1917, Woodrow Wilson signed the bill into law. The Sedition Act would come along a few months later.

The Espionage Act was codified in Title 18 of the United States Code starting at section 793 (18 U.S.C. § 793 et seq). Title 18 is the book covering most federal crimes.

The anti-war movement was growing, and something needed to be done.

The First World War was America’s first debut as a global military power, and although many Americans were swept up in a patriotic call to arms, a small but vocal minority of socialists, anarchists, pacifists and civil libertarians opposed American militarism… Driven by increasingly dire economic conditions and angered by wartime conscription, the American anti-war movement of 1917 – 1918 rose to near-revolution-like levels before being suppressed by aggressive government repression.

Under the Espionage Act, it was a crime to “wilfully cause or attempt to cause insubordination, disloyalty, mutiny, refusal of duty, in the military or naval forces of the United States, or … [to] obstruct the recruiting or enlistment service of the United States, to the injury of the service or of the United States.”

Arrests and challenges to the law began immediately.

What followed [from the passage of the law] was one of the worst violations of civil liberties in American history. Law enforcement officials swooped down on suspected radicals in 33 cities, arresting 6,000 people, most of them immigrants. The raids involved the wholesale abuses of the law: arrests without a warrant, unreasonable searches and seizures, wanton destruction of property, police brutality, and prolonged detention.

In the midst of this crisis the National Civil Liberties Bureau was formed — the predecessor of the ACLU, and the only national organization to speak out in defense of freedom of speech, freedom of the press, the rights of conscientious objectors, and the due process rights of radical labor leaders.

The first case [PDF] involved a postal mailing limitation against writings [PDF] with “material advocating treason, insurrection, [or] forcible resistance to any law.” The post office refused to deliver a “revolutionary journal” with anti-war comics and commentary. The federal court determined that the Espionage Act did not cover the specific content in the magazine. The material “cannot be thought directly to counsel or advise insubordination or mutiny” under the act, said Judge Learned Hand. The magazine won the case, but victory was short-lived. The appeals court reversed the decision.

For a moment the Supreme Court did not know what to do. On one hand, there was this Great World War going on threatening and killing allies in Europe, on the other, Americans were quite isolationist and not inclined to support major wars. The First Amendment had never been implicated to protect free speech, as there were no laws that violated free speech so seriously until now.

When a man was “attempting to obstruct the draft by writing antiwar letters to public officials,” he was convicted of violating the Espionage Act. (p. 676 FN 116 [PDF]) The case got to the Supreme Court where the decision was going to be divided. Although it appears that the conviction was going to be upheld, Justice Oliver Wendell Holmes was prepared to publish a dissent with harsh language that could inspire the antiwar movement.

It is better for those who have unquestioned and almost unlimited power in their hands to err on the side of freedom. We have enjoyed so much freedom for so long that perhaps we are in danger of forgetting that the bill of rights which cost so much blood to establish still is worth fighting for. (p. 1230 [PDF])

With those words apparently leaked back to the White House, the case was withdrawn and no decision issued.

World War I ended quickly for the United States, with November 11, 1918 becoming “armistice day,” and later Veterans’ Day. The war was over but the cases went on.

FIRE IN A CROWDED THEATRE

After the war, the free speech hammer came down hard. On March 3, 1919, a unanimous Supreme Court upheld the Espionage Act against a man for publishing anti-draft pamphlets.

During the war, Socialist Party Secretary Charles Schenck attempted to mail pamphlets to thousands of drafted men to discourage them from compliance with conscription.

In a democratic country each man must have the right to say whether he is willing to join the army. Only in countries where uncontrolled power rules can a despot force his subjects to fight… This is tyrannical power in its worst form. It gives control over the life and death of the individual to a few men. There is no man good enough to be given such power. Conscription laws belong to a bygone age.

Charles Schenck was charged and convicted under the Espionage Act and appealed the case to the Supreme Court. The Court upheld his conviction finding that the First Amendment right to free speech was not absolute. The Court famously said:

The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force.

With this statement, the Court legitimately broke down the absolute language of the First Amendment that “Congress shall pass no Law … abridging the freedom of speech.” Of course there had to be exceptions. This one was labeled “clear and present danger.”

The Court then held that someone facing the draft who sees a mailer suggesting “Assert Your Rights” faces that same “clear and present danger” — or that one could only react like a scared animal to these words: “If you do not assert and support your rights, you are helping to deny or disparage rights which it is the solemn duty of all citizens and residents of the United States to retain.”

To “obstruct the recruiting or enlistment service” would not be free speech the unanimous Court decided after the war. The era of abridged speech arrived. A series of cases followed where the Espionage Act and similar laws were used to criminalize speech involving public speeches, more pamphlets, and even state sedition laws.

Over the years, the Supreme Court has walked back some of the most extreme examples of free speech abridgment and added a few. In all that time, the Espionage Act has remained on the law books, although with modifications over time. As the law nears its 100th anniversary, it has become very popular again.

EDWARD SNOWDEN CHARGED

It is under this 1917 law that Edward Snowden was charged with crimes. Edward Snowden was charged [PDF] with “Unauthorized Communication of National Defense Information” and related offenses.

An official petition to the White House for pardon of Snowden received 167,955 signatures. The White House answers any petition with more than 100,000. So the answer came back, penned by Lisa Monaco, Homeland Security and Counterterrorism advisor. Lisa Monaco first pointed out that there were “appropriate reforms that balance the protection of civil liberties with the ability of national security professionals to secure information vital to keep Americans safe.”

Instead of constructively addressing these issues, Mr. Snowden’s dangerous decision to steal and disclose classified information had severe consequences for the security of our country and the people who work day in and day out to protect it.

If he felt his actions were consistent with civil disobedience, then he should do what those who have taken issue with their own government do: Challenge it, speak out, engage in a constructive act of protest, and — importantly — accept the consequences of his actions. He should come home to the United States, and be judged by a jury of his peers — not hide behind the cover of an authoritarian regime. Right now, he’s running away from the consequences of his actions. We live in a dangerous world.

It does not have to be that way. If the White House believes that the prosecution of Edward Snowden violates American principles, the administration is under no duty to prosecute.

What the White House is saying here is that they believe in this law being used in this way and they believe in the prosecution of the law in the case of Edward Snowden. If not, they would simply stop it.