Frohwerk v. United States

Decision Date10 March 1919
Docket NumberNo. 685,685
PartiesFROHWERK v. UNITED STATES
CourtU.S. Supreme Court

Messrs. Joseph D. Shewalter, of Independence, Mo., and Frans E. Lindquist, of Kansas City, Mo., for plaintiff in error.

Mr. John Lord O'Brian, of Buffalo, N. Y., for defendant in error.

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 (Comp. St. 1918, § 10212c). 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 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 (December 16, 1918) 248 U. S. 540, 39 Sup. Ct 132, 63 L. Ed. ——. 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, 249 U. S. 47, 39 Sup. Ct. 247, 63 L. Ed. 470, 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 language. Robertson v. Baldwin, 165 U. S. 275, 281, 17 Sup. Ct. 326, 41 L. Ed. 715. We venture to believe that neither Hamilton nor Madison, nor any other competent person then or later, ever supposed that to make criminal the counselling of a murder within the jurisdiction of Congress would be an unconstitutional interference with free speech.

Whatever might be thought of the other counts on the evidence, if it were before us, we have decided in Schenck v. United States, that a person may be convicted of a conspiracy to obstruct recruiting by words of persuasion. The Government argues that on the record the question is narrowed simply to the power of Congress to punish such a conspiracy to obstruct, but we shall take it in favor of the defendant that the publications set forth as overt acts were the only means and, when coupled with the joint activity in producing them, the only evidence of the conspiracy alleged. Taking it that way, however, so far as the language of the article goes there is not much to choose between expressions to be found in them and those before us in Schenck v. United States.

The first begins by declaring it a monumental and inexcusable mistake to send our soldiers to France, says that it comes no doubt from the great trusts, and later that it appears to be outright murder without serving anything practical; speaks of the unconquerable spirit and undiminished strength of the German nation, and characterizes its own discourse as words of warning to the American people. Then comes a letter from one of the counsel who argued here, stating that the present force is a part of the regular army raised illegally; a matter discussed at length in his voluminous brief, on the ground that before its decision to the contrary the Solicitor General misled this Court as to the law. Later, on August 3, came discussion of the causes of the war, laying it to the administration and saying 'that a few men and corporations might amass unprecedented fortunes we sold our honor, our very soul' with the usual repetition that we went to war to protect the loans of Wall Street. Later, after more similar discourse, comes 'We say therefore, cease firing.'

Next, on August 10, after deploring 'the draft riots in Oklahoma and elsewhere' in language that might be taken to convey an innuendo of a different sort, it is said that the previous talk about legal remedies is all very well for those who are past the draft...

To continue reading

Request your trial
294 cases
  • State v. Hayes
    • United States
    • Supreme Court of Connecticut
    • March 4, 1941
    ...... statutes. The information covers twenty-five printed pages in. the record, states in great detail the methods alleged to. have been used by the various defendants in the ... [18 A.2d 905] . be convicted. Terry v. United States, 9 Cir., 7 F.2d. 28; Tinsley v. United States, 8 Cir., 43 F.2d 890. In the cases of ... other acts done in pursuance thereof. As Justice Holmes put. it in Frohwerk v. United States, 249 U.S. 204, 209,. 39 S.Ct. 249, 252, 63 L.Ed. 561: ‘ Countenance we. ......
  • State v. Hayes
    • United States
    • Supreme Court of Connecticut
    • March 4, 1941
    ...or illegal agreement itself and the crimes or other acts done in pursuance thereof. As Justice Holmes put it in Frohwerk v. United States, 249 U.S. 204, 209, 39 S.Ct. 249, 252, 63 L.Ed. 561: "Countenance we believe has been given by some Courts to the notion that a single count in an indict......
  • State v. Casselman, 7502
    • United States
    • United States State Supreme Court of Idaho
    • May 2, 1949
    ...... peaceably which is guaranteed by the first Amendment to. the Constitution of the United States. Whitaker, et al. v. State of North Carolina, 335 U.S. 525, 69 S.Ct. 251, 93. L.Ed. ; ... People of State of California, 274 U.S. 357, 47 S.Ct. 641, 71 L.Ed. 1095; Frohwerk v. United States, 249. U.S. 204, 39 S.Ct. 249, 63 L.Ed. 561; United Public Works. v. Mitchell, ......
  • 46 South 52nd St. Corp. v. Manlin
    • United States
    • United States State Supreme Court of Pennsylvania
    • January 18, 1960
    ......As. stated by the Supreme Court of the United States in Hague. v. C. I. O., 1939, 307 U.S. 496, 515-516, 59 S.Ct. 954,. 964, 83 L.Ed. 1423. ...287; Schenck v. United. States, 249 U.S. 47, 39 S.Ct. 247, 63 L.Ed. 470;. Frohwerk v. United States, 249 U.S. 204, 39 S.Ct. 249, 63 L.Ed. 561; Debs v. United States, 249 U.S. ......
  • Request a trial to view additional results
13 books & journal articles
  • The Supreme Court and political speech in the 21st century: the implications of Holder v. Humanitarian Law Project.
    • United States
    • Albany Law Review Vol. 76 No. 1, September 2012
    • September 22, 2012
    ...criminal conviction of an anti-war protester who had circulated leaflets opposing military recruitment); Frohwerk v. United States, 249 U.S. 204, 205. 209-10 (1919) (affirming conviction of newspaperman for criticizing U.S. involvement in World War I); Debs v. United States, 249 U.S. 211,21......
  • REPUGNANT PRECEDENTS AND THE COURT OF HISTORY.
    • United States
    • Michigan Law Review Vol. 121 No. 4, February 2023
    • February 1, 2023
    ...at the exercise of the right of speech and assembly"). (237.) See Schenck v. United States, 249 U.S. 47 (1919); Frohwerk v. United States, 249 U.S. 204 (1919); Debs v. United States, 249 U.S. 211 (1919); Stilson v. United States, 250 U.S. 583 (1919); Abrams v. United States, 250 U.S. 616 (1......
  • "THIS WEARISOME ANALYSIS": THE CLEAR AND PRESENT DANGER TEST FROM SCHENCK TO BRANDENBURG.
    • United States
    • South Dakota Law Review Vol. 66 No. 3, March 2021
    • March 22, 2021
    ...alone warrants making the act a crime." Id. (citing Goldman v. United States, 245 U.S. 474,477 (1918)). (53.) Frohwerk v. United States, 249 U.S. 204, 206 (54.) Id. (55.) Id. at 205-06. Schenck had been sentenced to ten years on three counts, presumably concurrently. Schenck v. United State......
  • Associational speech.
    • United States
    • Yale Law Journal Vol. 120 No. 5, March 2011
    • March 1, 2011
    ...on speech). (9.) Abrams v. United States, 250 U.S. 616 (1919); Debs v. United States, 249 U.S. 211 (1919); Frohwerk v. United States, 249 U.S. 204 (1919); Schenck v. United States, 249 U.S. 47 (10.) 274 U.S. 357 (1927). (11.) The other two cases are Gitlow v. New York, 268 U.S. 652 (1925); ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT