In Frohwerk v. United States, 249 U.S.204 (1919), decided on the same day as Debs v. United States, the Supreme Court affirmed the conviction of a political dissident for articles he had published criticizing American participation in World War I. At the same time, the Court affirmed that individuals do not lose their rights to criticize governmental policies even during a time of war.

Jacob Frohwerk was convicted of conspiring to violate provisions of the Espionage Act of 1917 by writing articles published in the Missouri newspaper Staats Zeitung opposing U.S. involvement in World War I. He also was convicted of 11 counts of using the content of these publications in “attempts to cause disloyalty, mutiny, and refusal of duty” in the U.S.military. Frohwerk appealed his conviction to the Supreme Court, which expressed some dissatisfaction over the absence of a proper bill of exceptions specifically listing his objections or exceptions to the trial judge’s rulings. (There had been some controversy over whether the judge had had the power to reject a petition for continuance, order the defendant to enter a not guilty plea, and begin the trial when he did.)

Writing for the Court, Justice Oliver Wendell Holmes Jr. acknowledged that there was no evidence, unlike in Schenck v. United States (1919), that Frohwerk had specifically directed his criticisms of the war to draftees, but also observed that “so far as the language of the articles goes there is not much to choose between expressions to be found in them and those before us in Schenck v. United States.”

Holmes used Frohwerk to expand upon the clear and present danger test, which he had recently announced in Schenck and on which Frohwerk’s conviction was upheld. Holmes was especially mindful of the assertion in Schenck that “[w]hen a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight, and that no court could regard them as protected by any constitutional right.”

Holmes’s expansion in Frohwerk elaborated on the scope of wartime limitations on free expression. After summarizing Frohwerk’s comments critical of U.S. wartime policies, Holmes wrote, “It may be that all this might be said or written even in time of war in circumstances that would not make it a crime. We do not lose our right to condemn either measures or men because the country is at war.” This assertion represents an important addendum to the original explication of the clear and present danger test in that it specifies that even during war, courts should regard criticism of government policies and officials as protected speech

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