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Question of Free Speech in the United States

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Most Americans believe the First Amendment to the US Constitution guarantees free speech, but, in reality, it’s not that simple. The United States has passed many laws that limit the free speech that so many believe to be guaranteed to them. These laws include the Alien and Sedition Acts of 1798, the Espionage Act of 1917, the Sedition Act of 1918, and the PATRIOT Act of 2001. Of these, the Espionage Act of 1917 poses the greatest significance, because it censors a large part of US citizens’ speech and isn’t very well known by its citizens, even though the Obama administration has used it a multitude of times in the past eight years. The Act vastly decreases the amount of government information that is released to the public, some of which is related to the government’s violation of its citizens’ rights without their knowledge – as revealed by the somewhat recent Snowden scandal – and therefore allows the government to abuse its power in secrecy.

When it was initially enacted in 1917, the Espionage Act was intended to prevent US citizens from interfering with the war or war efforts of World War I, including negative speech about such things. This negative speech was thought to be a threat to the US’s war efforts, as it could convince men not to enlist and decrease nationalistic behavior of other citizens. The Espionage Act was passed to counteract this negative speech and create a more nationalistic and patriotic atmosphere in the US in order to strengthen its involvement in the war. In 1918, a set of amendments called the Sedition Acts was added to the Act in response to the Red Scare. These amendments created a broader range of offenses and stricter punishment for the Act. They were repealed two years after they were enacted, though large parts of the Espionage Act still remain today (Pub.L. 65–150). During World War I, enforcement was left up to the discretion of local United States Attorneys and thus varied widely depending on the region. Many court cases followed its enactment, including famous cases Debs v. US and Gitlow v. NY, that questioned its constitutionality, however, it has been upheld by the Court in every case under the argument that the speech of the plaintiffs was interfering with war efforts. After WWI, use of the Act decreased greatly and so did the amount of court cases brought up under it, as the original intent of the Act was no longer relevant. Recently, however, use of the act has spiked again under the Obama Administration, for uses other than as ruled constitutional in past Supreme court cases. The Act has been amended since the repeal of the Sedition Act, though less severely, to increase the penalties it imposes and the offenses it prohibits. For example, in 1933, it was amended to prohibit the release of “information regarding foreign code or anything sent in code” (18 USCA). These recent amendments have built up over the years to censor a large part of speech, mostly in regard to criticism of the government. This is detrimental to the United States as a whole because criticism of the government is necessary to make sure that the government is running the way the people want it to and in the best way possible. Criticism allows the government to see what it is doing wrong and how to fix any problems it may have. Dissent is a political duty of the American people, as our government is designed to hear their voices and opinions.

Though the US has not been at war since the end of WWII, the Espionage Act is still an active part of the US Code, despite its original intent being to cut down on negative speech about WWI. Now, the Act is used primarily to prevent government officials from leaking government intel to citizens, which allows the government to more tightly control the amount of information it is able to keep from its citizens. Even though the use of the Act has changed greatly, the Act itself remains mostly unchanged – aside from the broadening of offenses and punishments covered –, which is a major problem because it decreases citizens’ knowledge and awareness of the Act and its clauses are largely outdated. For its original purpose, the Act was effective in reducing negative speech about the war, but even this purpose is questionable. It opens the door for the Act to be used to prevent US citizens from speaking out against a war or aspects of a war that could negatively hurt them in some way. It also means the government can make decisions that it knows will hurt its citizens, but use the Act to prevent this information from getting to the public, and thus preventing large public opposition. The Act should be more limited in the offenses it covers and the penalties that can be awarded for violation of the Act. A smaller penalty would reduce the severity and thus the intimidation of the Act, as a larger penalty prevents citizens from voicing legitimate concerns out of fear of said penalty (McElroy).

The Espionage Act not only allows the government to limit speech, but also to keep important information from its citizens by creating large penalties for officials that leak information and for journalists who possess such information. This allows the government to keep information from the people more easily, even if it is information that may be important for the people to know, as shown by the Edward Snowden scandal (Garrett). Edward Snowden’s leaked government information created a large scandal, and many people believe he should not have been indicted for his crime – 55% of respondents in one poll believed he did “the right thing” – they believe that though he was undoubtedly violating the Espionage Act, his crime was intended to benefit American society (Guzik). Despite the scandal and outrage caused by Snowden’s action, there was no action by the government to adapt the Espionage Act, or much call for any adaptations by the American people, despite many arguments that Snowden didn’t deserve to be punished for his actions The outrage that followed this incident also further discourages government officials from leaking information; though many see Snowden as a hero, there is still a large amount of people who see him as a traitor, and Snowden had to seek asylum out of the country to avoid strict punishment in the US (MacAskill and Rusbridger). Under Trump’s Administration, future use of the Act is almost unpredictable. Political writer Gabe Schoenfield believes Trump will use it to silence the journalists he has repeatedly claimed to hate, while others – mostly Trump supporters – believe he won’t use it all in order to prevent tainting of Americans’ free speech. Trump said in a past interview that he wants to open libel laws so that when journalists “write purposely negative and horrible and false articles, we can sue them and win lots of money,” however, there’s not telling whether or not he will follow through on this statement (Schoenfield).

Another issue with the Espionage Act is that it leaves open interpretation to the government about what the phrase “unauthorized information” refers to. This means that the government can charge people for violating the Espionage Act for information that isn’t even necessarily dangerous or important, thus giving way too harsh a punishment for not so severe a crime. This also allows for the government to charge people without real reason, since the general public isn’t informed on the “unauthorized information” people who are charged with violating the Act are said to possess. Furthermore, this allows the government to charge people for motives other than because these people truly violated the Espionage Act. For example, they may charge someone for violating the Espionage Act because they don’t have enough evidence to convict them of a different charge, thus allowing the government to bypass the legal system. Though there is not much documentation of this happening, there is a good chance that it is happening and that the people are simply unware of it because the Espionage Act prevents information regarding this occurrences from spreading (Garrett). Even if it isn’t happening currently, it still opens the door for corruption in the future, and it is important for the government to close this door before anyone uses the Act to wrongly convict someone. Having such an easy and mostly unheard of bypass to the legal system is detrimental to a country that changes leadership so often, as one administration may choose not to use it, but the next could. Leaving interpretations of the law so open is also dangerous because it allows different administrations to use differing and even contradicting interpretations, which creates an unsafe amount of instability between administrations.

Amendments to this bill are necessary for it to be functional in today’s society; its current state allows for mass government overreach and corruption. When the government has complete say over what information it gives its citizens, it has the opportunity to control its citizens through the information it releases, much like the totalitarian North Korean government. To keep the US Government from becoming corrupted, the Espionage Act must be repealed or amended so that this abuse of power is not considered legal. If the Act were to be amended, the “unauthorized information” it is intended to keep from the public should be more precisely defined, so that the definition of this type of information isn’t left up to the government, as this gives the government too much power in the judicial sense. The penalties and array of offenses it covers should also be amended, so that the punishment better fit the crime, as the current penalties are far too severe for most of the crimes. Furthermore, legislation should take a close look at the original circumstances that produced the Act in order to better understand how to amend it to best fit contemporary problems. Whether or not the Act is changed or repealed, citizens should be more informed of the current provisions of the law and what is considered legal under it. Most citizens are unaware of the dangers the Espionage Act poses and instead assume it has no effect on their life or the lives of the people around them, when, in actuality, the Act affects the entire country as a whole in a major way (McElroy). While citizens should be held more responsible for educating themselves, it is this very law that allows the government to keep information from the people. The government should be responsible for releasing information on its actions, as people cannot educate themselves if there’s no information for them to educate themselves on – and the government hasn’t released a lot of information regarding its use of the Espionage Act over the past decade (Garrett).

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