![]() ![]() U.S., part of the trio of cases in 1919 upholding the Espionage Act’s application to left-wing opponents of the war (the others are Shenck v. There are several other cases along these lines, including, for instance, Frohwerk v. Over the strenuous dissent of Justices Louis Brandeis and Oliver Wendell Holmes Jr., the Supreme Court upheld the postmaster’s decision in 1920, with Justice John Clarke writing ominously, “The Constitution was adopted to preserve our government, not to serve as a protecting screen for those who, while claiming its privileges, seek to destroy it.” The following year, however, the Supreme Court overturned Berger’s criminal conviction because of prejudicial statements about Germans made by Judge Landis. The postal service revoked the Leader’s second-class mail privileges and blocked first-class mail addressed to the paper, finding that editorials critical of the war effort violated the Espionage Act.īerger was then charged, tried, and convicted for violating provisions of the Espionage Act criminalizing interference in the war effort, and was sentenced to 20 years in prison by Judge Kenesaw Mountain Landis, known as much for his excellent name as for being the first commissioner of Major League Baseball, who presided over the aftermath of the 1919 Black Sox scandal (and remains controversial for the persistence of the “color line” under his watch). ![]() Under the now-repealed Title XII of the Espionage Act, the government could deem publications “nonmailable” because they urged opposition to American entry into World War I. The most prominent example is Victor Berger, an Austrian-born Socialist and editor of the Milwaukee Leader, an antiwar newspaper. In other words, while we in the press freedom community tend to focus on how aggressive leak prosecutions dissuade sources from leaking, we should recall that, until the birth of the modern First Amendment in the wake of those dissident prosecutions, the Espionage Act had been used as a direct tool of censorship against members of the press claimed to be “disloyal.” But they went to jail for opinion journalism opposed to the Quasi-War with France in the 18th century and World War I in the 20th, not for spilling secrets. The fact is, just as members of the anti-Federalist press went to jail under the 1798 Alien and Sedition Acts, many members of the socialist press went to jail under the Espionage Act. It is relevant to the ongoing debate over how the spying laws should interact, if at all, with journalists and journalism. ![]() We could deal with my failings as a newsletter writer in a brief clarification, but it’s worth dwelling on the significance of my mistake. (Thank you to our close readers for catching that.) In doing so, I carelessly asserted, without qualification, that a member of the news media “has never been charged under the law.” What I meant was that a member of the news media has never been charged under the still existing provisions of the Espionage Act that criminalize national security leaks to the press. Last week, I wrote a post on “ A Century of Repression,” Ralph Engelman and Carey Shenkman’s new book on press freedom and the Espionage Act of 1917.
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