The Espionage Act’s constitutional legacy

One of the federal government’s most powerful laws is also known as one of its most controversial statutes: the Espionage Act.

Currently, the Espionage Act is back in the news after the Justice Department listed the act in a warrant to obtain documents from former President Donald Trump’s residence in Florida. The warrant cited 18 U.S.C. § 793 as one of three reasons for the property search. Section 793 is one of six sections within the Espionage Act of 1917, as amended. Section 793 deals with the “gathering, transmitting, or losing of national defense information.” The warrant did not specify which of Section 793’s subsections applied in this case.

The Espionage Act of 1917 was an outgrowth of the federal government’s efforts during World War I to contain not only espionage but also public criticism of its war efforts. Amendments to it in May 1918, were known as the Sedition Act.  The Sedition Act of 1918 also harkened back to the controversial Alien and Sedition Acts of 1798 during John Adams’ presidency, which today are seen as in conflict with the Constitution’s First Amendment.

The Sedition Act amendments made it a crime to “willfully utter, print, write, or publish any disloyal, profane, scurrilous, or abusive language about the form of government of the United States, or the Constitution of the United States.” The controversy over the Espionage Act of 1917 also led to the creation of the Civil Liberties Bureau (the predecessor of the American Civil Liberties Union). The act was at the heart of several landmark Supreme Court cases in the years just after World War I.

In 1919, a unanimous Supreme Court upheld the Espionage Act in Schenck v. United States, when it ruled that the First Amendment did not protect pacifists who circulated antidraft literature from arrest under the act. Other challenges to the original act soon failed. In Abrams v. United States, majority of Justices upheld the criminal conviction of immigrants who publicly opposed the United States’ intervention in Russia’s Bolshevik revolution. But Justice Oliver Wendell Holmes Jr.’s dissent introduced the concept of the free marketplace of ideas, which later gained prominence in the Court’s free speech cases. “The best test of truth is the power of the thought to get itself accepted in the competition of the market,” Holmes argued.

By March 1921, Congress had repealed the Sedition Act amendments to the Espionage Act. The Espionage Act still survived in a peacetime form and saw another challenge at the Supreme Court in January 1941 when a unanimous court decided Gorin v. United States. Gorin was a Soviet spy who received stolen information about Japanese-Americans and Japanese nationals from a disgruntled civilian Naval Intelligence employee. Both men contested their convictions under the Espionage Act based on the act’s definition of “national defense.”

The Supreme Court upheld the men’s convictions, but Justice Stanley F. Reed’s ruling also raised some doubts about the Espionage Act. Reed believed the act’s definition of “National Defense” was vague, but it still applied to the case because there was "intent or reason to believe that the information to be obtained [was] to be used to the injury of the United States, or to the advantage of any foreign nation.”

Since Gorin, many Espionage Act cases have focused on leaks of government information to the public and the press. But in 1944, a divided Supreme Court in Hartzel v. United States settled a free speech issue after a man sent literature to people in military service that criticized President Franklin D. Roosevelt and America’s British allies. The Court said he could not be prosecuted under the act.  “An American citizen has the right to discuss these matters either by temperate reasoning or by immoderate and vicious invective without running afoul of the Espionage Act of 1917,” wrote Justice Frank Murphy. The Espionage Act then received some revisions in 1948 and 1950.

The act’s last major test at the Supreme Court came in 1971, when the federal government attempted to prevent the New York Times and the Washington Post from publishing classified documents about the Vietnam War in the Pentagon Papers Case. Attorney General John Mitchell cited Section 793(e) of the Espionage Act as giving the president the power to halt their publication.

In its per curiam opinion, a 6-3 majority said the First Amendment protected the newspapers from an injunction seeking to stop the Pentagon Papers’ publication. In his concurrence, Justice Thurgood Marshall echoed the opinion of several other justices that Congress did not intend to give the president broad wartime censorship powers in 1917. “[I]t is clear that Congress has specifically rejected passing legislation that would have clearly given the President the power he seeks here and made the current activity of the newspapers unlawful. When Congress specifically declines to make conduct unlawful, it is not for this Court to redecide those issues – to overrule Congress,” Marshall wrote. The act survived but its scope was again narrowed in a free speech case.

In recent years, the act has been cited in several prominent criminal cases. In 2018, a former Navy contractor, Reality Winner, received a five-year jail sentence under the act for leaking government information to a website. The Espionage Act was also at the heart of the charges against Edward Snowden and Chelsea Manning, two other figures charged with leaking government information to websites and publications. Snowden sought asylum in Russia, while Manning served time in prison before receiving a presidential commutation of her sentence.

Recent debates about the Espionage Act have revolved around the First Amendment and the ability of people with access to classified information to reveal it to the press if they believe the government has acted improperly. In particular, critics have cited Justice Reed’s comments in the Gorin decision about the act’s broad definition of “national defense.”

But at the Supreme Court, the Espionage Act has rarely come up for discussion since the Pentagon Papers Case in 1971. In 1988, the Fourth Circuit rejected an appeal from Samuel Loring Morison, who was convicted under the act for selling a top-secret photo of a Russian aircraft carrier to a magazine. Morison claimed the act did not apply to leaks to the press, or to leaks that were not to foreign governments. The Fourth Circuit disagreed, and the Supreme Court did not accept Morison’s appeal.

Scott Bomboy is editor in chief of the National Constitution Center.