Frohwerk v. United States
249 U.S. 204 (1919)

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U.S. Supreme Court

Frohwerk v. United States, 249 U.S. 204 (1919)

Frohwerk v. United States

No. 685

Argued January 27, 1919

Decided March 10, 1919

249 U.S. 204


The First Amendment, while prohibiting legislation against free speech as such, was not intended to give immunity to every possible use of language. P. 249 U. S. 206.

A conspiracy to obstruct recruiting by words of persuasion merely, viz., by circulating newspaper publications, with overt acts, is within the Espionage Act of June 15, 1917, and within the power of Congress to punish. Pp. 249 U. S. 206, 249 U. S. 208. Schenck v. United States, ante, 249 U. S. 47.

After conviction under an indictment charging such a conspiracy and, as overt acts, the circulation of newspapers containing articles which might well tend to effect its object if circulated in certain places, the court must assume, in the absence of a bill of exceptions, that the evidence as to the quarters reached by the newspapers and the scienter and expectation of the defendant was sufficient to sustain the conviction. P. 249 U. S. 208.

A conspiracy to obstruct recruiting in violation of the Espionage Act is criminal even when no means have been specifically agreed on to carry out the intent, and hence it is not an objection to an indictment that means are not alleged. P. 249 U. S. 209.

Neither, in such an indictment, is it necessary to allege that false reports were made or intended to be made. Id.

An allegation that defendants conspired to accomplish an object necessarily alleges their intent to do so. Id.

Under § 4 of the Espionage Act of 1917, the overt acts are sufficiently alleged as done to effect the object of the conspiracy. Id.

An indictment is not bad for duplicity in setting up in a single count a conspiracy to commit two offenses; the conspiracy is a unit, however diverse its objects. Id.

There is no merit in the suggestion that acts which are not treasonable cannot be punished under the Espionage Act of 1917 upon the theory that other acts included in the statute amount to treason, and can only be punished as such. P. 249 U. S. 210.

The amendment of 1918 did not affect indictments found under the Espionage Act of 1917. Id.

Page 249 U. S. 205

Abuse of discretion is not established by the facts that, upon overruling a demurrer to an indictment, the district court on the next day ordered a plea of not guilty to be entered, refused a continuance, empaneled a jury out of those previously called to meet on that day for the term, and set the trial to begin on the day following. Id.


The case is stated in the opinion.

Primary Holding
The First Amendment does not protect speech that could be interpreted by its audience to undermine American war efforts.
Frohwerk and Carl Gleeser circulated a German-language newspaper, the Missouri Staats Zeitung, in which they published articles that criticized the U.S. involvement in the First World War and appeared to warn the government against further involvement. Frohwerk was indicted on charges of conspiracy to violate the Espionage Act of 1917, since the government claimed that he was seeking to cause disloyalty and refusal of duty in the U.S. military.



  • Oliver Wendell Holmes, Jr. (Author)
  • Edward Douglass White
  • Joseph McKenna
  • William Rufus Day
  • Willis Van Devanter
  • Mahlon Pitney
  • James Clark McReynolds
  • Louis Dembitz Brandeis
  • John Hessin Clarke

It was impossible to ascertain what the publishers intended with regard to the effect of their articles, or whether they were aware that their articles could influence many people. The clear and present danger test applies even if the defendant did not specifically intend to influence people subject to the draft.

Case Commentary

In contrast to some early First Amendment cases, the Court seemed more concerned with the speaker's intent than the actual effect of the speech. The articles did not incite a dramatic mutiny, although there was some pre-existing discontent that the publisher sought to exploit.

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