Saturday, October 11, 2014

Creel and the Espionage Act

Note for a Planned Article
"Creel, Lippmann, and the Origins of American Public Diplomacy"
(comments welcome; draft, not for citation)

From James R. Mock and Cedric Larson, Words that Won the War (Princeton: Princeton University Press, 1939), pp. 40-46:

As observed earlier in this chapter, only two of the twelve
titles of the Espionage Act are directly relevant to a discussion
of free speech, but apparently the great bulk of Americans did
not know that anything affecting the civil liberty of ordinary
citizens remained in the bill at its passage.

Yet in section 3 of Title I and in Title XII was the authority
used by the Department of Justice in prosecuting approxi-
mately 2,000 cases, in only some of which the defendants were
anything like the "spies and enemy agents" against whom the
public thought the bill was directed. In its final form in 1917,
section 3 of Title I read:

"Whoever, when the United States is at war, shall wilfully
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, when the United States is at war, shall
wilfully cause or attempt to cause insubordination, disloyalty,
mutiny, or refusal of duty in the military or naval forces of the
United States, or shall wilfully obstruct the recruiting or enlist-
ment service of the United States, to the injury of the service
or of the United States, shall be punished by a fine of not more
than $10,000 or imprisonment for not more than twenty years,
or both."

This is what gave teeth to the Committee on Public Infor-
mation. Without questioning the loyalty of the great majority
of American newspapers, it may fairly be said that this was the
big stick behind the "voluntary" censorship of the press. In
certain cases it was actually used for control of the press, and
in countless others the shadow of its authority fell across the
desks of the country's editors. The CPI was no agency of
prosecution, but law-enforcement bodies were always prepared
to use this section of the act to force compliance with the Com-
mittee's wishes. This is the section most frequently in mind
when reference is made to "conviction under the wartime Es-
pionage Act" and the names of many famous defendants are
associated with it Victor L. Berger, Eugene V. Debs, Big Bill
Haywood and ninety-two others in the mass trial of the
I.W.W., Max Eastman (two mistrials) , Scott Hearing (acquit-
ted) , Kate Richards O'Hare, Rose Pastor Stokes, and hundreds
of others. Sentences of five, ten, and twenty years were im-
posed with a liberal hand, though only the shortest of these
were served to completion, for President Harding freed many
of the offenders and President Coolidge ordered release of the
"last political prisoner" on December 15, 1923.

Power over the press was found not only in the section just
quoted but also in Title XII, where it was declared that any
matter violating the Espionage Act was non-mailable. Oswald
Garrison Villard, an issue of whose Nation was excluded for
an attack on Samuel Gompers until Secretary Franklin K. Lane
and Joseph P. Tumulty came to his support, has charged that
the measure was used for the persecution of insignificant publi-
cations while the Department of Justice feared to attack more
important journals. Mr. Villard reports that when he pub-
lished the internationally embarrassing text of the Secret
Treaties in the New York Evening Post he was not even asked
where he had obtained the inflammatory material which may
indicate either naive ignorance of its importance or reluctance
to tackle a paper with such influential Washington connections
as the Post then had.

One other part of the Espionage Act is relevant here Title
XI, under which the government seized the motion picture
The Spirit of '76, which had been in production before war be-
gan but, unhappily for the owners, was released at an awkward
time from the point of view of patriotism. The movie film was
impounded because, in its portrayal of the American Revolu-
tion, it showed British soldiers practising atrocities on non-

Espionage Act of 1917
Great Seal of the United States
Long titleAn Act to punish acts of interference with the foreign relations, 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.
Enacted bythe 65th United States Congress
EffectiveJune 15, 1917
Public LawPub.L. 65–24
Statutes at Large40 Stat. 217
Legislative history
United States Supreme Court cases
Schenck v. United States

The validity of the Espionage Act was not finally established
by the Supreme Court until the war was over. When the time
came, four months after the Armistice, however, the Court
placed its stamp of approval on the broad interpretation which
almost all judges except Learned Hand and Charles F. Amidon
had given to the act. One of the most important cases was that
of Schenck v. United Stares, decided March 3, 1919, in which
Schenck, an officer of the Socialist Party, was held to have
violated the law through printing and distributing leaflets
which might have deterred drafted men from doing their duty
and the Court did not require proof that the leaflets had
actually influenced conscripts.

Most striking of the many interesting aspects of the Schenck
case is that the decision was rendered, for a united Court, by
the famous liberal, Oliver Wendell Holmes. He rejected un-
equivocally the possible plea of protection under the First
Amendment, denying that free speech is an absolute right, and
in effect warning all dissenters that they cannot expect protec-
tion from the courts in a time of great stress such as the World

"When a nation is at war" Justice Holmes said, "many
things that might be said in time of peace are such a hindrance
to its effort that their utterance will not be endured so long as
men fight, and that no court could regard them as protected
by any constitutional rights."

In this and other cases it was decided that words alone con-
stitute an overt act, that "to obstruct" means not only "to pre-
vent" but also "to make difficult," and that for most offenses it
is unnecessary to prove actual injury to the United States if the
acts' remote tendencies be considered injurious. (Professor
Zechariah Chafee, Jr., calls this similar to a charge of attempted
murder for firing a rifle at a man forty miles away.)

But broad as was this interpretation of the Espionage Act,
that was not the only source of censorship power. In the Trad-
ing-with-the-Enemy Act of October 6, 1917, censorship of
messages between the United States and any foreign country
was authorized. By use of powers granted by this act, the Presi-
dent established a Censorship Board, of which George Creel
was a member, and because of the importance of transatlantic
news this placed one more powerful weapon in Creel's hands.

And in section 19 of the act was a provision which enabled
the government to whip into line the entire foreign-language
press of the United States. No one could mail a magazine or
newspaper containing any article or editorial in a foreign lan-
guage "respecting the government of the United States or of
any nation engaged in the present war, its policies, interna-
tional relations, the state or conduct of the war, or any matter
relating thereto/" unless a sworn translation were filed with the
postmaster. But there was a strategic proviso: the President
might issue revocable permits removing these onerous restric-
tions from specific publications as long as they behaved them-
selves. Critics called it a form of blackmail.

Even with these laws on the books, however, the government
sometimes felt that it lacked sufficient power, and several fright-
ening examples of mob violence against supposed offenders
persuaded the Department of Justice that orderly law-enforce-
ment required improvement of the language of the Espionage
Act notably to make clear that attempts to obstruct the re-
cruiting service and opposition to the Liberty Loan were
covered. Attorney General Gregory asked Congress to make
the required amendment. The Senate Judiciary Committee not
only complied with the request but in a burst of patriotic fer-
vor proceeded to establish nine new offenses. This thorough-
going amendment, which is known as the Sedition Act of 1918,
was passed by Congress and signed by the President on May
16, 1918, with little public notice an illustration of the con-
suming speed with which a tendency toward restrictive legisla-
tion can proceed in wartime.

Among other new offenses which the so-called Sedition Act
of 1918 (actually it was only an amendment of the Espionage
Act) made punishable by penalties up to $10,000 and twenty
years was the wilful writing, utterance, or publication of any
"disloyal, profane, scurrilous, or abusive language about the
form of government of the United States, or the Constitution
of the United States, or the military or naval forces of the
United States, or the flag of the United States, or the uniform
of the army or navy of the United States, or any language in-
tended to bring the form of government of the United States,
or the Constitution of the United States, or the flag of
the United States, or the uniform of the army or navy of the
United States into contempt, scorn, contumely, or disrepute."
The Sedition Act also changed Title XII of the original statute,
allowing the Postmaster General upon evidence satisfactory
to him (i.e. without trial) to return mail addressed to anyone
violating the Espionage Act.

Thus, in spite of newspaper elation back in May 1917 that
months editors might be punished in a variety of ways for
publication of matter believed to have even remotely bad
tendencies by exclusion from the mails (and in the case of
foreign-language papers by withdrawal of permits without
which it was difficult if not impossible to do business) , and by
severe personal penalties of fine and imprisonment.

Although none of these extraordinary powers was vested in
the Committee on Public Information, George Creel's mem-
bership on the Censorship Board and his support by Military
and Naval Intelligence, and the Department of Justice and
similar establishments made his word almost as good as law.
And he used that law with a sober sense of responsibility. Mr.
Creel merits criticism for many of his impetuous actions and
"horseback decisions" during the war years; he was wrong
many times, he caused more dissension than necessary with
other branches of government, and he may have taken too
much pride in the CPI. But the more complete one's knowl-
edge of wartime history the more certain does it become that
there was appreciably more press freedom in the United States
than in the warring nations of Europe, and that the largest
share of credit for this belongs to Mr. Creel.

If the censorship was not quite as voluntary as many Amer-
icans believed it was during 1917-1918, it was very largely self-
administered. The CPI set down the general principles, and,
without legal action, the great majority of American newspa-
pers followed these rules under their own interpretation. Hints
of political use of the CPI were of course constantly offered
during the war. In a sense they were justified, for if it is difficult
to distinguish between the President as politician and the
President as statesman in peacetime, it is practically impossible
when the country is at war. The CPI was naturally used to the
advancement of Mr. Wilson's ideas, but in the narrower sense
of seeking aggrandizement for the Administration's political
party George Creel's committee has a remarkably clear record.
Some of the Committee's most responsible positions were
filled by Republicans, and Mr. Creel set his face against in-
volvement in local politics even when the "patriotic" excuse
for it seemed pressing to some of his friends.

Censorship, too, was employed "politically" in so far as the
term covers suppression of arguments against the Wilsonian
system of ideas, but it was never successfully charged that Mr.
Creel used his censorship authority for strictly partisan advan-
tage or to advance his personal or political fortunes. Even
charges of outright disloyalty he received without calling on
the government for protection.

But the power was there. It was there in abundance, and it is
easy to imagine how logically and effortlessly, supported by
wave upon wave of patriotic emotion, George Creel might
have continued to expand his powers and tighten his grip on
the American press. That he did not is the strongest evidence
of his sincerity in advocating "expression not repression." The
positive side of the CPI story will be examined in later chap-
ters. In the meantime, who was this remarkable man who, in
spite of having more than a fair share of mercurial tempera-
ment, carried his liberalism through the hatred and hysteria
of war, and what was the vast and unparalleled organ-
ization that he built up?

Under the Obama administration, seven Espionage Act prosecutions have been related not to traditional espionage but to either withholding information or communicating with members of the media. Out of a total eleven prosecutions under the Espionage Act against government officials accused of providing classified information to the media, seven have occurred since Obama took office.

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