Frohwerk v. United States
249 U.S. 204 (1919)
Rule of Law:
The First Amendment does not protect speech that is part of a conspiracy with the intent and tendency to obstruct military recruiting and enlistment during a time of war, even if the speech consists only of words of persuasion published in a newspaper.
Facts:
- Jacob Frohwerk was involved in the preparation and publication of a German-language newspaper, the Missouri Staats Zeitung, during World War I.
- From July to December 1917, the newspaper published a series of twelve articles that Frohwerk helped prepare.
- The articles declared that sending American soldiers to France was a 'monumental and inexcusable mistake' and 'outright murder' orchestrated by wealthy trusts.
- The publications asserted that the United States entered the war to protect Wall Street loans and was effectively 'led and ruled by England'.
- One article described the suffering of a drafted man and questioned who would pronounce him guilty if he followed the impulse of self-preservation and resisted the draft.
- The articles praised Germany's 'unconquerable spirit' and characterized the Central Powers as fighting a defensive war.
Procedural Posture:
- Jacob Frohwerk was charged in a federal trial court in a thirteen-count indictment for conspiracy to violate the Espionage Act of 1917.
- The defendant filed a demurrer and a motion to dismiss on constitutional grounds, including the First Amendment, which the trial court overruled.
- The defendant refused to plead, so the court entered a plea of not guilty on his behalf.
- Following a jury trial, Frohwerk was convicted on twelve of the thirteen counts.
- The trial court sentenced him to a fine and ten years in prison on each count, to run concurrently.
- Frohwerk, as the plaintiff in error, appealed the judgment directly to the Supreme Court of the United States.
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Issue:
Does a conviction under the Espionage Act of 1917 for conspiracy to cause disloyalty and obstruct military recruiting, based on the publication of newspaper articles critical of the war, violate the First Amendment's guarantee of free speech?
Opinions:
Majority - Justice Holmes
No. The conviction under the Espionage Act of 1917 does not violate the First Amendment. The First Amendment's protection of speech is not absolute and was not intended to give immunity for every possible use of language. Citing the recent precedent of Schenck v. United States, the Court affirmed that words of persuasion can constitute a criminal conspiracy to obstruct recruiting. While citizens do not lose the right to criticize the government during wartime, the specific articles in this case were published with the intent to obstruct the war effort. The circumstances and context in which they were published mattered; the government could have shown they were circulated in places 'where a little breath would be enough to kindle a flame,' thereby creating a clear and present danger that Congress had a right to prevent.
Analysis:
This case, decided one week after Schenck v. United States, solidified the initial interpretation of the 'clear and present danger' test, confirming that the context of wartime significantly narrows the scope of First Amendment protections. The ruling demonstrated that indirect advocacy and persuasion, not just explicit calls for illegal action, could be punished if they had the intent and tendency to obstruct a critical government function like military recruitment. Along with Schenck and Debs v. United States, this decision empowered the government to prosecute anti-war dissent, establishing a precedent that speech could be restricted based on its perceived potential for harm during a national crisis.
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