The modern American conception of freedom of speech comes from the principles of freedom of the press, and freedom of religion as they developed in England, starting in the seventeenth century. The arguments of people like John Milton on the importance of an unlicensed press, and of people like John Locke on religious toleration, were all the beginning for the idea of the “freedom of speech”.
By the year of 1791, when the First Amendment was ratified, the idea of “freedom of speech” was so widely accepted that it became the primary, and a very important issue in the amendment. “Freedom of press” came with it to insure that the written and printed as well as oral communication was protected: “Congress shall make no law … abridging the freedom of speech, or of the press.”
From the 1791 and until the beginning of the twentieth century the idea of “freedom of speech” and the “freedom of press” was not interfered in by the judicial system. And only during World War I did the Supreme Court actively start to work on the issue of the “freedom of speech/press” of the First Amendment. In 1919 cases like Schenck vs. United States and Abram vs. United States did the new interpretation of the First Amendment come into place.
Schenck vs. United States was argued on January 9 and 10, 1919. The first charges were based on him breaking the Espionage Act of June 15, 1917, because he was getting on the way of the governments recruiting practices, Act of May 18, 1917, while the country was at war with German Empire. The second charge was a conspiracy to commit an offense against the United States, to use the mails for the transmission of the things that were declared to be non-mailable by title 12, 2, of the Act of June 15, 1917.
What happened was, that in 1917, when the American troops were away fighting the war, the general secretary of the Socialist party, Charles T. Schenck, and the members of the party mailed between 15,000 and 16,000 pamphlets to draftees. Those pamphlets described draftees as “a little more than a convict” and tried to convince them to resist conscription.
The case was decided March 3, 1919. Mr. Justice Holmes delivered the opinion of the entire Court. He stated 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.” However, any act depends on the circumstances in which it was done. “The most stringent protection of free speech, would not protect a man in falsely shouting fire in a crowded 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.” The “clear and present danger” rule came out of this. He also wrote “Circumstances that would create a clear and present danger, Congress has a right to prevent…. When a nation is at war many things that mighty be said in time of peace are such a hindrance to its effort...