Schenck had been convicted under the Espionage Act of 1917 for seeking to obstruct the draft. He had circularized a mailing list with literature opposing the World War I draft law. Included on the list were a number of persons in the military service at the time of receipt of the material. Holmes’ reasoned as follows: “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.... “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.... If the act, ... 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.”[742] Schenck remained in jail. In a subsequent case under the same Act, involving a group of “radicals” who had disseminated a pamphlet condemning United States intervention in Russia and threatening to thwart that intervention by causing trouble on the home front, calling upon munitions workers to quit their jobs, and advocating revolution, Holmes dissented from a decision upholding their conviction.[743] Rejecting as fallacious the conclusion of his colleagues that the surreptitious publishing of a “silly leaflet by an unknown man, without more, would present any immediate danger that its opinions would hinder the success of the government arms or have any appreciable tendency to do so,” Holmes maintained: “An intent to prevent interference with the revolution in Russia might have been satisfied without any hindrance to carrying on the war in which we were engaged.... “Even if I am technically wrong and enough can be squeezed from these poor and puny anonymities to turn the color of legal litmus paper; I will add, even if what I think the necessary intent were shown; the most nominal punishment seems to me all that possibly could be inflicted, unless the defendants are to be made to suffer not for what the indictment alleges but for the creed that they avow....”[744]