An appeal was taken to the Supreme Court of the United States and was argued on the ground that the Espionage Act was unconstitutional. No act was charged against Debs, except the Canton speech. In that speech he had simply stated what he had said a thousand times before, but the Court held that under the Espionage Act a man who made a speech, the probable result of which was to create mutiny or to hinder recruiting and enlistment—was guilty, providing that he did it knowingly and wilfully. The jury had to decide, first, that he had done something the probable result of which was to create mutiny or to hinder recruiting and enlistment, and then if he had done it, that it was done with intent, knowingly and wilfully. The jury had found Debs guilty under these circumstances.
Debs was an American, and as an American he relied upon a certain guarantee contained in the First Amendment to the Constitution: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech or of the press, or the right of the people peacefully to assemble and to petition the Government for a redress of grievances." Debs, as an American citizen, relied upon that guarantee, and his lawyers, in making the appeal, relied upon that guarantee.
Over and against that guarantee was the Espionage Act passed originally in 1917—June 15th—and amended June 16, 1918.
The language of the original act was as follows:
(Title I, Sec. 3.) "Whoever, when the United States is at war, shall (1) wilfully make or convey false reports or false statements with intent to interfere with the operation or success of the military or naval forces of the United States or to promote the success of its enemies, and whoever, when the United States is at war, (2) shall wilfully cause or attempt to cause insubordination, disloyalty, mutiny, or refusal of duty, in the military or naval forces of the United States, or shall (3) wilfully obstruct the recruiting or enlistment service of the United States, to the injury of the service or of the United States, shall be punished by a fine of not more than $10,000 or imprisonment for not more than twenty years, or both."
The Amended Act was far more drastic:
"Whoever, when the United States is at war, shall wilfully make or convey false reports or false statements with intent to interfere with the operation or success of the military or naval forces of the United States, or to promote the success of its enemies, or shall wilfully make or convey false reports or false statements, or say or do anything except by way of bona fide and not disloyal advice to an investor or investors, with intent to obstruct the sale by the United States of bonds or other securities of the United States or the making of loans by or to the United States, and whoever, when the United States is at war, shall wilfully cause, or attempt to cause, or incite or attempt to incite, insubordination, disloyalty, mutiny, or refusal of duty, in the military or naval forces of the United States, or shall wilfully obstruct or attempt to obstruct the recruiting or enlistment service of the United States, and whoever, when the United States is at war, shall wilfully utter, print, write or publish any disloyal, profane, scurrilous or abusive language about the form of government of the United States, or the Constitution of the United States, or the military or naval forces of the United States, or the flag of the United States, or the uniform of the Army or Navy of the United States, or any language intended to bring the form of government of the United States, or the Constitution of the United States, or the military or naval forces of the United States, or the flag of the United States, or the uniform of the Army or Navy of the United States into contempt, scorn, contumely, or disrepute, or shall wilfully utter, print, write or publish any language intended to incite, provoke or encourage resistance to the United States or to promote the cause of its enemies, or shall wilfully display the flag of any foreign enemy, or shall wilfully, by utterance, writing, printing, publication or language spoken, urge, incite or advocate any curtailment of production in this country of any thing or things, product or products, necessary or essential to the prosecution of the war in which the United States may be engaged, with intent by such curtailment to cripple or hinder the United States in the prosecution of the war, and whoever shall wilfully advocate, teach, defend, or suggest the doing of any of the acts or things in this section enumerated, and whoever shall, by word or act, support or favor the cause of any country with which the United States is at war or by word or act oppose the cause of the United States therein, shall be punished by a fine of not more than $10,000 or imprisonment for not more than twenty years, or both." ...
There you have both pieces of legislation. On the one hand, the Constitution provides immunity, and on the other hand, the Espionage Act provides a penalty for the expression of opinion.
The Supreme Court on the 10th of March handed down its decision. The decision was read by Justice Holmes and concurred in by the entire court.