In the 1914 case Fox v. State of Washington, the United States Supreme Court upheld a conviction against Jay Fox for distributing literature that encouraged resistance to law enforcement. The court ruled that his actions violated state laws prohibiting incitement to crime and were not protected by the First Amendment's guarantee of free speech. The decision was based on an interpretation of "clear and present danger" test, which holds that certain forms of speech can be restricted if they pose a clear threat to public safety or order. In this case, Fox had distributed pamphlets encouraging workers involved in labor disputes to resist police intervention with force if necessary.

In the dissenting opinion for FOX v. STATE OF WASHINGTON, Justice Holmes disagreed with the majority's decision to uphold Fox's conviction on grounds of inciting violence and disorderly conduct. He argued that Fox’s speech did not pose a "clear and present danger" which he believed should be the standard for limiting free speech under the First Amendment. According to him, there was no immediate threat or harm caused by his words; therefore, they should have been protected as free expression. Furthermore, Holmes suggested that it is essential in a democratic society to allow unpopular opinions to be voiced without fear of punishment unless they directly lead to harmful actions or create an imminent risk of such outcomes. In essence, he contended that freedom of speech must encompass even those views which might disturb peace and order since this is inherent in its very concept.