Hand was grappling, just as he would in the Heine case two decades later, with a law that, on its face, appeared to be unworkably broad. In his decision, he wondered if one might run afoul of the Espionage Act by praising Quakers. The legislation covers traditional spying but also actions far afield from it. For President Woodrow Wilson, Lebovic writes, the term “espionage” meant “anything that interfered with the war effort.” In practice, the new law was used to suppress socialists and labor unions, as if the Kaiser were behind every demand for fair wages. Eugene V. Debs was convicted under the Espionage Act after he gave a speech in which he told the people in the crowd that they didn’t deserve to be “cannon fodder.” He ran for President from prison, a fact that has become surprisingly relevant this election cycle.
As Adam Hochschild writes in last year’s “American Midnight” (Mariner), the era’s raids and mass arrests had a steep human cost. Hochschild’s account captures how the war-fuelled fever rose and, eventually, broke. Certain parts of the Espionage Act were repealed or revised, including particularly outrageous provisions in a 1918 amendment known as the Sedition Act, which targeted “abusive language about the form of government” in wartime. But the bulk of the original law remained.
The effect of some measures was cushioned by a series of Supreme Court rulings that drew a sharper line between political speech and criminal incitement. And some jurists—notably Holmes, a pivotal figure in the speech cases—came to regard the restrictionist excesses of the nineteen-tens and twenties with regret, even shame. But regrets have a way of fading, and the backlash was never strong enough to get the act fully overhauled.
Instead, as time went on, more secrecy laws were added: certain types of information (cryptographic ciphers, agents’ names, details about atomic weaponry—a possible problem for Trump) were further restricted, while federal employees were made liable for, say, mishandling classified documents or stealing government property. The Classified Information Procedures Act of 1980 sought to make it easier to use information deemed secret as evidence in prosecutions without revealing it in open court. Trump’s Florida case has already been delayed by CIPA disputes, including about security clearances for his lawyers.