“a remarkable exercise in historical amnesia”

by zunguzungu

Yochai Benkler, on using the 1917 Espionage Act to prosecute WikiLeaks:

The call for using the Espionage Act of 1917 is a remarkable exercise in historical amnesia.  It is consistent, however, with the wording of both the Pentagon’s response in August and the State Department’s letter in November. The Act was the primary legal tool developed in what was “one of the most fiercely repressive periods in American history.” Efforts by judges, most prominently Learned Hand in The Masses case, to constraint its use to preserve press freedom failed, and courts of appeals followed the approach that the government had the power to punish publication of materials that had a “natural and probable tendency” to produce the result that the Act was intended to prevent. Under the Act, Rose Pastor Stokes was convicted to ten years imprisonment for saying in a public meeting “I am for the people and the government is  for the profiteers;” although her conviction was overturned on appeal. Others were not as fortunate. A film director, Robert Goldstein, received a 10 year term for producing a movie about the Revolutionary War that portrayed not only the Midnight Ride, the signing of the Declaration of Independence, and Valley Forge, but also the Wyoming Valley Massacre, showing British soldiers bayoneting women and children.  The trial court found that these depictions “may have a tendency or effect of sowing … animosity or want of confidence between us and our allies.” Goldstein’s 10 year prison term was not overturned, but was later commuted by Woodrow Wilson. Eugene V. Debs would have to wait for President Warren G. Harding to be released, alongside other “political prisoners” prosecuted under the Act during the World War I.

As a matter of law, parts of the Act are indeed on the books.  As a matter of constitutional culture, invoking the Espionage Act against an act of public expression is more akin to calling for the prosecution of dissenters under the Sedition Act of 1789.