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