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Frohwerk v. United States

Supreme Court of the United States · 1919 · Constitutional Law

Constitutional LawFirst AmendmentFree SpeechEspionage ActFirst Amendmentfree speechEspionage Act of 1917conspiracy

Facts

Frohwerk and Carl Gleeser were alleged to have conspired, while engaged in preparing and publishing the Missouri Staats Zeitung, to violate the Espionage Act by preparing and circulating twelve newspaper articles between July and December 1917. The articles criticized the war, denounced sending soldiers to France, described the war as serving trusts and Wall Street, praised German strength, and questioned resistance to the draft in language the Court viewed as similar to that in Schenck. The other counts charged attempts to cause disloyalty, mutiny, and refusal of duty in the military and naval forces through those publications. Because no bill of exceptions was before the Court, it took the record as it stood and assumed the publications were the means and evidence of the alleged conspiracy.

Issue

Whether Frohwerk's conviction under the Espionage Act, based on newspaper articles alleged to support a conspiracy to obstruct recruiting and to cause disloyalty, violated the First Amendment or rested on an insufficient indictment. Also, whether the first count was defective for failing to allege specific means or intent.

Rule

The First Amendment, while prohibiting legislation against free speech as such, was not intended to give immunity for every possible use of language. A person may be convicted of a conspiracy to obstruct recruiting by words of persuasion, and an indictment for such a conspiracy is sufficient if it alleges an agreement to accomplish that unlawful object and overt acts done to effect it; it need not allege specific means.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

During a declared war, Elena Markovic and Noah Brenner run a small weekly paper in Milwaukee. They agree to publish a series of editorials urging young men to ignore enlistment appeals and describing military service as a scheme for financiers, and the government charges them with conspiracy to obstruct recruiting based on the articles alone.

What is the strongest argument for upholding the conspiracy charge?

Explanation. The majority held that free speech does not provide immunity for every possible use of language and that conspiracy to obstruct recruiting may be proved by words of persuasion. The Court specifically rejected the idea that only false statements could suffice.