Law School Case Brief
Frohwerk v. United States - 249 U.S. 204, 39 S. Ct. 249 (1919)
A conspiracy to obstruct recruiting would be criminal even if no means were agreed upon specifically by which to accomplish the intent. It is enough if the parties agreed to set to work for that common purpose. That purpose could be accomplished or aided by persuasion as well as by false statements, and there is no need to allege that false reports were intended to be made or made. Intent to accomplish an object cannot be alleged more clearly than by stating that parties conspired to accomplish it.
The United States alleged 13 counts against defendant Frohwerk in its indictment. The first alleged a conspiracy between defendant and one Carl Gleeser, which alleged that the two were engaged in the preparation and publication of a newspaper, the Missouri Staats Zeitung, which violated the Espionage Act of June 15, 1917, c. 30, § 3, 40 Stat. 217, 219. The indictment further alleged as overt acts the preparation and circulation of 12 articles in the newspaper at different dates from July 6, 1917, to December 7 of the same year. The other counts alleged 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. The defendant's 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 after the defendant refused 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 10 years' imprisonment on each count, the imprisonment on the later counts to run concurrently with that on the first. Frohwerk appealed the judgment that overruled his demurrer to his indictment and convicted him of conspiracy to violate the Espionage Act of 1917, 40 Stat. 217, 219, and alleged attempts to cause disloyalty, mutiny, and refusal of duty in the military.
Was the publication of newspaper articles criticizing the government protected by the First Amendment?
The Court held that the First Amendment did not protect every kind of speech. On the record, it could have been found that the circulation of the paper was in quarters where a little breath would be enough to kindle a flame, and that such fact was known and relied upon by those who sent the paper out. A conspiracy to obstruct recruiting was criminal even if no means were agreed upon specifically by which to accomplish the intent. It was enough if the parties agreed to set to work for that common purpose. The overt acts were alleged to have been done to effect the object of the conspiracy and that was sufficient under § 4 of the Act.
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