Espionage Act of 1917
Sponsor
Sen. Charles Culberson (D-TX)
What It Says It Does
NO STATED PURPOSE SECTION IN STATUTE. The act contains no short title provision. Its long title reads: An Act to punish acts of interference with the foreign relations, the neutrality, and the foreign commerce of the United States, to punish espionage, and better to enforce the criminal laws of the United States, and for other purposes. The popular name derives from the heading of Title I.
What It Authorizes
Title I, Section 3
Title I, Section 3, at 40 Stat. 219, provided that whoever, when the United States is at war, shall willfully make or convey false reports or false statements with intent to interfere with the operation or success of the military or naval forces of the United States, or to promote the success of its enemies, and whoever shall willfully cause or attempt to cause insubordination, disloyalty, mutiny, or refusal of duty in those forces, or shall willfully obstruct the recruiting or enlistment service of the United States, shall be punished by a fine of not more than 10,000 dollars or imprisonment for not more than twenty years, or both. The section criminalized speech based on its content and its predicted effect on military operations.
What It Touches
Constitutional Tension
The First Amendment provides that Congress shall make no law abridging the freedom of speech. Section 3 criminalized statements that obstructed recruiting or caused disloyalty in the armed forces. The question is whether Congress may criminalize speech opposing a war or a draft, and under what standard. The Supreme Court answered three times in 1919 and every time for the government. Schenck v. United States, 249 U.S. 47, decided March 3, 1919, upheld a conviction for distributing anti draft leaflets and announced that the question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. Holmes wrote, and there were no dissents. Debs v. United States, 249 U.S. 211, decided March 10, 1919, upheld the conviction of Eugene Debs for an anti war speech, again by Holmes and again without dissent. Abrams v. United States, 250 U.S. 616, decided November 10, 1919, upheld convictions seven to two, Clarke writing, with Holmes dissenting joined by Brandeis. Fifty years later, Brandenburg v. Ohio, 395 U.S. 444, replaced the clear and present danger standard with a narrower test permitting punishment only where advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.
A court considered this challenge and ruled for the government.
Sunset and Renewal
No sunset clause.
No sunset clause. The Sedition Act of 1918, Pub. L. 65-150, May 16, 1918, 40 Stat. 553, amended Section 3 to punish anyone who should willfully utter, print, write, or publish any disloyal, profane, scurrilous, or abusive language about the form of government of the United States, the Constitution, the military or naval forces, or the flag. Those amendments were repealed on March 3, 1921, at 41 Stat. 1359, restoring Section 3 to its original form. The core provisions were recodified in Title 18 in 1948 at sections 793, 794, and 798, where they remain. Modern prosecutions for unauthorized disclosure of national defense information proceed under 18 U.S.C. 793(d) and (e), which require willfulness and reason to believe the information could be used to the injury of the United States, but do not require specific intent to harm the United States or aid a foreign power. Neither section provides a public interest or whistleblower defense, and the Fourth Circuit rejected one in United States v. Morison, 844 F.2d 1057 (4th Cir. 1988).
Status verified September 2026.