I cite the United States Supreme Court decision below as an example of reasoning that has undermined the Constitution. The important question before the Court is whether the the speech clause of the 1st Amendment renders the Espionage Act of June 15, 1917 unconstitutional. The important part of the opinion is paragraph #5. You may prefer to read the intact paragraph before reading the analysis. 1st Amendment Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Messrs. Henry John Nelson and Henry Johns Gibbons, both of Philadelphia, Pa., for plaintiffs in error.
Mr. John Lord O'Brian, of Buffalo, N. Y., for the United States.

Mr. Justice HOLMES delivered the opinion of the Court.

OPINION (by paragraph)	COMMENT
This is an indictment in three counts. The first charges a conspiracy to violate the Espionage Act of June 15, 1917, c. 30, tit. 1, 3, 40 Stat. 217, 219 (Comp. St. 1918, 10212c), by causing and attempting [249 U.S. 47, 49]   to cause insubordination, &c., in the military and naval forces of the United States, and to obstruct the recruiting and enlistment service of the United States, when the United States was at war with the German Empire, to-wit, that the defendant wilfully conspired to have printed and circulated to men who had been called and accepted for military service under the Act of May 18, 1917, c. 15, 40 Stat. 76 (Comp. St. 1918, 2044a-2044k), a document set forth and alleged to be calculated to cause such insubordination and obstruction. The count alleges overt acts in pursuance of the conspiracy, ending in the distribution of the document set forth. The second count alleges a conspiracy to commit an offense against the United States, to-wit, to use the mails for the transmission of matter declared to be non-mailable by title 12, 2, of the Act of June 15, 1917 (Comp. St. 1918, 10401b), to-wit, the above mentioned document, with an averment of the same overt acts. The third count charges an unlawful use of the mails for the transmission of the same matter and otherwise as above. The defendants were found guilty on all the counts. They set up the First Amendment to the Constitution forbidding Congress to make any law abridging the freedom of speech, or of the press, and bringing the case here on that ground have argued some other points also of which we must dispose.	Indicted on three counts: conspiracy to print and circulate a document against World War I and thus violating the Espionage Act of June 15, 1917, conspiracy to use the mail to distribute the document violating title 12, 2, of the Act of June 15, 1917, using of the mail to distribute the document. Found guilty on all counts
It is argued that the evidence, if admissible, was not sufficient to prove that the defendant Schenck was concerned in sending the documents. According to the testimony Schenck said he was general secretary of the Socialist party and had charge of the Socialist headquarters from which the documents were sent. He identified a book found there as the minutes of the Executive Committee of the party. The book showed a resolution of August 13, 1917, that 15,000 leaflets should be printed on the other side of one of them in use, to be mailed to men who had passed exemption boards, and for distribution. Schenck personally attended to the printing. On [249 U.S. 47, 50]   August 20 the general secretary's report said 'Obtained new leaflets from printer and started work addressing envelopes' &c.; and there was a resolve that Comrade Schenck be allowed $125 for sending leaflets through the mail. He said that he had about fifteen or sixteen thousand printed. There were files of the circular in question in the inner office which he said were printed on the other side of the one sided circular and were there for distribution. Other copies were proved to have been sent through the mails to drafted men. Without going into confirmatory details that were proved, no reasonable man could doubt that the defendant Schenck was largely instrumental in sending the circulars about. As to the defendant Baer there was evidence that she was a member of the Executive Board and that the minutes of its transactions were hers. The argument as to the sufficiency of the evidence that the defendants conspired to send the documents only impairs the seriousness of the real defence.	Proof of three acts.
It is objected that the documentary evidence was not admissible because obtained upon a search warrant, valid so far as appears. The contrary is established. Adams v. New York, 192 U.S. 585, 24 Sup. Ct. 372; Weeks v. United States, 232 U.S. 383, 395, 396 S., 34 Sup. Ct. 341, L. R. A. 1915B, 834, Ann. Cas. 1915C, 1177. The search warrant did not issue against the defendant but against the Socialist headquarters at 1326 Arch street and it would seem that the documents technically were not even in the defendants' possession. See Johnson v. United States, 228 U.S. 457, 33 Sup. Ct. 572, 47 L. R. A. ( N. S.) 263. Notwithstanding some protest in argument the notion that evidence even directly proceeding from the defendant in a criminal proceeding is excluded in all cases by the Fifth Amendment is plainly unsound. Holt v. United States, 218 U.S. 245, 252, 253 S., 31 Sup. Ct. 2	Admission of evidence questioned. Evidence declared admissible.
The document in question upon its first printed side recited the first section of the Thirteenth Amendment, said that the idea embodied in it was violated by the conscription act and that a conscript is little better than a [249 U.S. 47, 51]   convict. In impassioned language it intimated that conscription was despotism in its worst form and a monstrous wrong against humanity in the interest of Wall Street's chosen few. It said, 'Do not submit to intimidation,' but in form at least confined itself to peaceful measures such as a petition for the repeal of the act. The other and later printed side of the sheet was headed 'Assert Your Rights.' It stated reasons for alleging that any one violated the Constitution when he refused to recognize 'your right to assert your opposition to the draft,' and went on, 'If you do not assert and support your rights, you are helping to deny or disparage rights which it is the solemn duty of all citizens and residents of the United States to retain.' It described the arguments on the other side as coming from cunning politicians and a mercenary capitalist press, and even silent consent to the conscription law as helping to support an infamous conspiracy. It denied the power to send our citizens away to foreign shores to shoot up the people of other lands, and added that words could not express the condemnation such cold-blooded ruthlessness deserves , &c., &c., winding up, 'You must do your share to maintain, support and uphold the rights of the people of this country.' Of course the document would not have been sent unless it had been intended to have some effect, and we do not see what effect it could be expected to have upon persons subject to the draft except to influence them to obstruct the carrying of it out. The defendants do not deny that the jury might find against them on this point.	Description of circular.
TOP (Paragraph #5 - by sentence.  Intact paragraph here.) But it is said, suppose that that was the tendency of this circular, it is protected by the First Amendment to the Constitution. Two of the strongest expressions are said to be quoted respectively from well-known public men. 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 [249 U.S. 47, 52] main purpose, as intimated in Patterson v. Colorado, 205 U.S. 454, 462 , 27 S. Sup. Ct. 556, 51 L. ed. 879, 10 Ann. Cas. 689. 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. Aikens v. Wisconsin, 195 U.S. 194, 205 , 206 S., 25 Sup. Ct. 3. 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 may have all the effect of force. Gompers v. Buck's Stove & Range Co., 221 U.S. 418, 439 , 31 S. Sup. Ct. 492, 55 L. ed. 797, 34 L. R. A. (N. S.) 874. 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. When 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. It seems to be admitted that if an actual obstruction of the recruiting service were proved, liability for words that produced that effect might be enforced. The statute of 1917 in section 4 (Comp. St. 1918 , 10212d) punishes conspiracies to obstruct as well as actual obstruction. If the act, (speaking, or circulating a paper,) its tendency and the intent with which it is done are the same, we perceive no ground for saying that success alone warrants making the act a crime. Goldman v. United States, 245 U.S. 474 , 477 38 Sup. Ct. 166, 62 L. ed. 410. Indeed that case might be said to dispose of the present contention if the precedent covers all media concludendi. But as the right to free speech was not referred to specially, we have thought fit to add a few words.	It is proposed that the circular is protected by the 1st Amendment in spite of the Espionage Act. The notion of protected speech is introduced though never mentioned in the Constitution. It is consistent, with the 1st Amendment, to say that the 1st Amendment protects freedom of speech from Congressional interference. But it is not consistant to say that the 1st Amendment assigns government the task of protecting incidents of speech from reaction. Remember, Congress is the subject of the Speech Clause and not speech. (Not relevant) The term previous restraint is not in the Constitution and not clearly defined by Holmes. I assume he sees congressional abridgment law as previous restraint. He says that prevention of previous restraint does not prevent subsequent punishment. Thus subsequent punishment for speech is constitutional. But punishment requires an instigating law; that is, an abridgment law defining the speech that can be punished. In short, there cannot be subsequent punishment without previous restraint. So Holmes is amending the Constitution to allow abridgment in areas defined by government. Further, a purpose of subsequent punishment is to prevent like acts in the future. This certainly is a form of previous restraint. To argue otherwise requires saying that the purpose of a law prohibiting certain speech is different than the purpose of a law setting punishment for certain speech. Holmes declares that freedom of speech is a Constitutional right and that this right can not be abridged under normal circumstances. Two things are accomplished: It is declared that speech is a constitutional right. It is implied that this Constitutional right can be withdrawn. If government can withdraw rights, rights are not something the citizens own but rather a grant from government. Citizens no longer cede certain powers to government, but are granted certain powers by government. The speech clause has switched from a limit on governmental power to a bestowal of power to government. From a denial of government action (abridging speech), we have moved to government acting to protect speech. The purpose of the clause has changed from limiting government action to enabling government action. No comment necessary. Here is an example of line #5. Notice Holmes is no longer talking about the prohibition to Congress in the Speech Clause. He is talking about protection of an incident of speech. The implication is that some speech is protected and some not. Since some speech is protected and some not, then laws, such as the Espionage Act, separating protected and not protected speech are constitutional. That is, Congress can make law abridging speech. We have arrive at a refutation of the 1st Amendment's Speech Clause. The important point has been made. From here to the end of the paragraph is applying an acceptable facade.
It was not argued that a conspiracy to obstruct the draft was not within the words of the Act of 1917. The [249 U.S. 47, 53]   words are 'obstruct the recruiting or enlistment service,' and it might be suggested that they refer only to making it hard to get volunteers. Recruiting heretofore usually having been accomplished by getting volunteers the word is apt to call up that method only in our minds. But recruiting is gaining fresh supplies for the forces, as well by draft as otherwise. It is put as an alternative to enlistment or voluntary enrollment in this act. The fact that the Act of 1917 was enlarged by the amending Act of May 16, 1918, c. 75, 40 Stat. 553, of course, does not affect the present indictment and would not, even if the former act had been repealed. Rev. St. 13 (Comp. St. 14).	Not relevant to the the Speech Clause.
Judgments affirmed.

ESPIONAGE ACT of June 15, 1917 (relevant portion) Title I, Section 3 Whoever, when the United States is at war, shall wilfully make or convey false reports or false statements with intent to interfere with the operation or success of the military or naval forces of the United States or to promote the success of its enemies and whoever when the United States is at war, shall wilfully cause or attempt to cause insubordination, disloyalty, mutiny, refusal of duty, in the military or naval forces of the United States, or shall wilfully obstruct the recruiting or enlistment service of the United States, to the injury of the service or of the United States, shall be punished by a fine of not more than $10,000 or imprisonment for not more than twenty years, or both.

But it is said, suppose that that was the tendency of this circular, it is protected by the First Amendment to the Constitution. Two of the strongest expressions are said to be quoted respectively from well-known public men. 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 [249 U.S. 47, 52]   main purpose, as intimated in Patterson v. Colorado, 205 U.S. 454, 462 , 27 S. Sup. Ct. 556, 51 L. ed. 879, 10 Ann. Cas. 689. 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. Aikens v. Wisconsin, 195 U.S. 194, 205 , 206 S., 25 Sup. Ct. 3. 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 may have all the effect of force. Gompers v. Buck's Stove & Range Co., 221 U.S. 418, 439 , 31 S. Sup. Ct. 492, 55 L. ed. 797, 34 L. R. A. (N. S.) 874. 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. When 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. It seems to be admitted that if an actual obstruction of the recruiting service were proved, liability for words that produced that effect might be enforced. The statute of 1917 in section 4 (Comp. St. 1918 , 10212d) punishes conspiracies to obstruct as well as actual obstruction. If the act, (speaking, or circulating a paper,) its tendency and the intent with which it is done are the same, we perceive no ground for saying that success alone warrants making the act a crime. Goldman v. United States, 245 U.S. 474 , 477 38 Sup. Ct. 166, 62 L. ed. 410. Indeed that case might be said to dispose of the present contention if the precedent covers all media concludendi. But as the right to free speech was not referred to specially, we have thought fit to add a few words.

U.S. Supreme Court PATTERSON v. COLORADO, 205 U.S. 454 (1907) [relevant excerpt]

Mr. Justice Holmes delivered the opinion of the court: But even if we were to assume that freedom of speech and freedom of the press were protected from abridgments on the part not only of the United States but also of the states, still we should be far from the conclusion that the plaintiff in error would have us reach. In the first place, the main purpose of such constitutional provisions is 'to prevent all such previous restraints upon publications as had been practised by other governments,' and they do not prevent the subsequent punishment of such as may be deemed contrary to the public welfare. Com. v. Blanding, 3 Pick. 304, 313, 314, 15 Am. Dec. 214; Respublica v. Oswald, 1 Dall. 319, 325, 1 L. ed. 155, 158, 1 Am. Dec. 246.