On June 16, 1917, one day after Congress passed the Espionage Act; authorities took Irving T. Boutwell, into custody at the Topeka Union Pacific Depot for distributing an anti-war tract to a passing troop train. The leaflet, entitled “A Good Soldier,” attributed to Jack London, condemned the soldier as a “blind, heartless, soulless, murderous machine” who “never thinks; never reasons; he only obeys.” Boutwell stood accused of attempting to cause insubordination disloyalty, mutiny, and refusal of duty in the armed forces. In January 1918, Boutwell became the first Kansan convicted under the Espionage Act.
While Congress never intended the sections of the Draft and Espionage Act criminalizing interference with conscription or enlistment to be used to repress freedom of speech, the broad language of the laws provided federal prosecutors with a wide discretionary authority to determine what speech was deemed harmless and what constituted a threat to the war effort.
A successful prosecution did not have to offer evidence of any direct harm to the government or its policies, only proof of the intent to cause that harm. Several days prior to Boutwell’s arrest, Fred Robertson, U.S. Attorney for the District of Kansas, having by chance reviewed the London tract, offered the opinion that while he was not inclined to think its circulation was a violation of the law, what rendered it dangerous speech was Boutwell’s admission that he hoped it would influence the soldiers to lay down their guns. “We do not need to be shown that any harm has resulted,” Robertson once noted, “simply that an attempt has been made.”
This “bad tendency” test, as a standard of judgement of the First Amendment, silenced dissent by punishing individuals not for what they said or wrote but for the chance that their words might influence others to violate a federal law. Notwithstanding a lack of proof that such speech caused anyone to refuse to register for the draft, juries did not hesitate to convict or judges to hand down harsh sentences in cases where resistance to the law was seen as a “natural and probable” consequence of the anti-war speech. This wide discretionary authority, regarding who they might prosecute, as one observer noted, turned every U.S. Attorney into “an angel of life and death, clothed with the power to walk up and down in his district, saying ‘This one will I spare, and that one I will smite.’” During the war, federal agents prosecuted more than 1,500 Americans for disloyalty resulting in 1,050 convictions.