mendment was stated at
length by Justice Holmes in this language:

"We admit that in many places and in ordinary times, the defendants
would have been within their constitutional rights. But the character of
every act depends upon the circumstances in which it is done.... 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."

That is the Debs decision. That is the method in which the Supreme Court
handled the popular liberties guaranteed under the First Amendment. The
Court might have thrown the Espionage Act out under the First Amendment
as it threw out the Child Labor Law. The Court might have ruled this act
unconstitutional. The Court did not decide that Congress had no right to
pass the Espionage Act. The Court did decide that since Congress had
passed the Espionage Act, Debs had no right to make his speech. What are
the implications of this position of the Supreme Court? "Congress shall
make no law abridging the freedom of speech," says the Constitution.
Congress passed a law abridging the freedom of speech, and the Supreme
Court holds that the Courts, in interpreting the Constitution, must bear
in mind the law that Congress has passed. We had thought that the
Constitutional guarantee was superior to any law that Congress might
pass, but the Court specifically holds in the Schenck Case that if "the
words 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," then the First
Amendment affords no protection.

Congress is made the arbiter. Congress now decides what may be said and
what may not be said.

This means that the Constitution does not guarantee personal liberty.
Speech is free, if you keep within the laws passed by Congress, not
otherwise. "Congress shall make no law abridging the freedom of speech,"
declares the Constitution. Speech is free, says the Court, if you obey
the laws passed by Congress. What is the result? If the United States
enters the League of Nations as a constituent part of it, and if the
League of Nations carries on a series of minor wars, this country will
be at war perhaps for fifty years, and during that time free speech will
be banned under this decision of the Supreme Court;