The Espionage Act's Shameful and Forgotten History

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>Demanding the indictment of Julian Assange under the 1917 Espionage Act in a Wall Street Journal op-ed, Senator Diane Feinstein (or her resident ghost writer) quoted everyone's favorite rationale for restricting speech: "the First Amendment is not a license to yell 'Fire!' in a crowded theater." Actually, like most people, she (or her staffer) misquoted this canard: "The most stringent protection of free speech would not protect a man in falsely shouting fire in a crowded theater and causing a panic," (emphasis supplied) Justice Holmes wrote in 1919, in Schenck v U.S.  Given the truths exposed by WikiLeaks, you might argue that Assange was truly shouting fire in a crowded theater, and you might even characterize the ensuing "panic" as a kind of heckler's veto.  

Not that Holmes would have been at all sympathetic to Julian Assange (at least not in 1919). He offered his famous "falsely yelling fire in a crowded theater" analogy in upholding an early conviction under the Espionage Act. What terrible act of treason did this case entail? Charles Schenck was convicted of circulating pamphlets urging men to resist the draft. According to Holmes (writing for a unanimous Court), these pamphlets presented a "clear and present danger" to the republic.

Today, Schenck is mainly survived by its famous one-liners. It was decided before the First Amendment was regarded as an essential restraint on federal and state power to restrict speech, when Justices Holmes and Brandeis, in particular, were just beginning to articulate theories of First Amendment rights. (In the immediate aftermath of World War I, the Court also upheld the Espionage Act conviction of Eugene Debs who, like Schenck, was prosecuted for speaking against the draft: he told his audience that they "were fit for something better than slavery and cannon fodder." Emma Goldman was deported for criticizing the draft.)

I like to assume that the Supreme Court would not uphold the these convictions today, even though it recently re-authorized the criminalization of political advocacy, in Holder v Humanitarian Law Project. Still, I don't think the Court is quite ready to approve the prosecution of anti-war activists for circulating pamphlets or exhorting people not to regard themselves as cannon fodder. (Although the FBI might illegally monitor their activities and police might corral and arrest them.) But if the criminalization of anti-draft rhetoric seems anachronistic, Charles Schenck's rhetorical defense of liberty was timeless, and could easily be echoed tomorrow by a right or left wing civil libertarian, or even a Tea Party activist, if Congress were to re-authorize a draft (and unleash a strong anti-war movement).

Schenck regarded the draft as an unconstitutional usurpation of power, a violation of the 13th Amendment's prohibition on slavery. He insisted that citizens had an obligation to protest the violation of their rights:
   

In lending tacit or silent consent to the conscription law, in neglecting to assert your rights, you are (whether knowingly or not) helping to condone and support a most infamous and insidious conspiracy to abridge and destroy the sacred and cherished rights of a free people. You are a citizen: not a subject! You delegate your power to the officers of the law to be used for your good and welfare, not against you. ... Are you willing to submit to the degradation of having the Constitution of the United States treated as a mere scrap of paper ... You are responsibile.  You must do your share to maintain, support, and uphold the rights of the people of this country ... In this world crisis where do you stand? Are you with the forces of liberty and light or war and darkness?

Waging war in the early 20th century, the federal government naturally saw itself on the side of "liberty and light" and its critics as purveyors of "war and darkness," as governments waging war invariably do. Today, the U.S. at war is officially engaged in "Operation Enduring Freedom" and the Espionage Act is effectively framed as an instrument of freedom. The House Judiciary Committee will begin holding hearings on the Espionage Act this week; too bad its free-speaking victims -- Charles Schenck, Emma Goldman, and Eugene Debs -- aren't around to testify.  

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Wendy Kaminer is an author, lawyer, and civil libertarian. She is the author of I'm Dysfunctional, You're Dysfunctional.

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