Edward Snowden, the young CIA contractor who leaked classified information about information-gathering tactics to the press is awaiting his fate in Hong Kong. Meanwhile, pundits and commentators are doing their best to predict what the future holds for him. Most believe that if extradition is successful he will be charged under the 1917 Espionage Act, because the Obama administration has already actively used that law to prosecute leakers such as Bradley Manning and John Kiriakou. It is curious that a constitutional law professor president would so rely on this act, which was used to suppress political dissent, including the religiously-inspired political opposition to World War I of Jehovah’s Witnesses. The act, and cases brought under it, is significant as a measuring rod used to determine the breadth and scope of the right to free speech protected under the U.S. Constitution. Civil libertarian criticism of the Espionage Act’s enforcement in the case of Schenk v. U.S. ultimately inspired Justice Oliver Wendell Holmes to revise his view of the importance of freedom of expression to democratic self-governance, coining the concept of a free marketplace of ideas as fundamentally necessary to democracy.
In 1918, Joseph F. Rutherford, leader of the Watchtower & Bible Tract Society, and seven followers were tried and convicted on four counts of violations under the act. The activities that led to their arrest and conviction consisted in publishing and distributing in military camps a tract interpreting the Book of Revelation and the Book of Ezekiel as condemning wartime bloodshed as violations of the will of God. Their convictions were later reversed and the act itself amended. However, the early use of the act to suppress views and beliefs that dissent from the ones that the government believed it urgently needed to inculcate in order to maintain public support for its military campaign continues to resonate today.