249 U.S. 204 (1919), 685, Frohwerk v. United States

Docket Nº:No. 685
Citation:249 U.S. 204, 39 S.Ct. 249, 63 L.Ed. 561
Party Name:Frohwerk v. United States
Case Date:March 10, 1919
Court:United States Supreme Court

Page 204

249 U.S. 204 (1919)

39 S.Ct. 249, 63 L.Ed. 561



United States

No. 685

United States Supreme Court

March 10, 1919

Argued January 27, 1919




The First Amendment, while prohibiting legislation against free speech as such, was not intended to give immunity to every possible use of language. P. 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. 206, 208. Schenck v. United States, ante, 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. 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. 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. 210.

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

Page 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.

HOLMES, J., lead opinion

MR. JUSTICE HOLMES delivered the opinion of the Court.

This is an indictment in thirteen counts. The first alleges a conspiracy between the plaintiff in error and one Carl Gleeser, they then being engaged in the preparation and publication of a newspaper, the Missouri Staats Zeitung, to violate the Espionage Act of June 15, 1917, c. 30, § 3, 40 Stat. 217, 219. It alleges as overt acts the preparation and circulation of twelve articles &c. in the said newspaper at different dates from July 6, 1917, to December 7 of the same year. The other counts allege attempts to cause disloyalty, mutiny, and refusal of duty in the military and naval forces of the United States by the same publications, each count being confined to the publication of a single date. Motion to dismiss and a demurrer on constitutional and other grounds, especially that of the First Amendment as to free speech, were overruled, subject to exception, and the defendant refusing to plead, the court ordered a plea of not guilty to be filed. There was a trial, and Frohwerk was found guilty on all

Page 206

the counts except the seventh, which needs no further mention. He was sentenced to a fine and to ten years imprisonment on each count, the imprisonment on the later counts to run concurrently with that on the first.

Owing to unfortunate differences, no bill of exceptions is before us. Frohwerk applied to this Court for leave to file a petition for a writ of mandamus requiring the judge to sign a proper bill of exceptions, but a case was not stated that would warrant the issuing of the writ, and leave was denied. United States ex rel. Frohwerk v. Youmans, 248 U.S. 540. The absence of a bill of exceptions and the suggestions in the application for mandamus have caused us to consider the case with more anxiety than if it presented only the constitutional question which was the theme of the principal argument here. With regard to that argument, we think it necessary to add to what has been said in Schenck v. United States, 47, only that the First Amendment, while prohibiting legislation against free speech as such, cannot have been, and obviously was not, intended to give immunity for every possible use of...

To continue reading