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

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FROHWERK v. UNITED STATES 249 U.S. 204 (1919)

In the second major test of the wartime espionage act to reach the Supreme Court, the Justices unanimously affirmed the conviction of the publisher of a pro-German publication for conspiring to obstruct military recruitment through publication of antidraft articles. Justice oliver wendell holmes invoked the clear and present danger test. "We do not lose our right to condemn either measures or men because the Country is at war," he wrote, "But … it is impossible to say that it might not have been found that the circulation of the paper was in quarters where a little breath would be enough to kindle a flame.…" Holmes and his brethren declined to inquire themselves into the degree or probability of the danger represented by the publication.

Michael E. Parrish
(1986)