was at
war with the German Empire, to-wit, that the defendants willfully
conspired to have printed and circulated to men who had been called and
accepted for military service under the Act of May 18, 1917, a document
set forth and alleged to be calculated to cause such insubordination and
obstruction." Affirming the conviction, the Court, speaking by Justice
Holmes said: "It well may be that the prohibition of laws abridging the
freedom of speech is not confined to previous restraints, although to
prevent them may have been the main purpose, as intimated in Patterson
_v._ Colorado.[85] * * * We admit that in many places and in ordinary
times the defendants in saying all that was said in the circular would
have been within their constitutional rights. But the character of every
act depends upon the circumstances in which it is done. * * * The most
stringent protection of free speech would not protect a man in falsely
shouting fire in a theatre and causing a panic. It does not even protect
a man from an injunction against uttering words that have all the effect
of force. * * * The question in every case is whether the words used are
used in such circumstances and are of such a nature as to create a clear
and present danger that they will bring about the substantive evils that
Congress has a right to prevent. It is a question of proximity and
degree."[86] One week later two other convictions under the same act
were affirmed, with Justice Holmes again speaking for the unanimous
Court. In Frohwerk _v._ United States[87] he said: "With regard to the
argument [on the constitutional question] we think it necessary to add
to what has been said in Schenck _v._ United States, * * *, 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. 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."[88] In Debs
_v._ United States[89] he referred to "the natural and intended effect"
and "probable effect"[90] of the condemned speech (straight common law).
When, moreover, a case arose in which the dictum in the Schenck case
might have influenced the result, the C