In the case of Pierce et al. v. United States in 1919, the Supreme Court upheld convictions under the Espionage Act of 1917 for individuals who distributed leaflets encouraging resistance to the draft during World War I. The defendants argued that their First Amendment rights were violated by these convictions, but this argument was rejected by Justice Oliver Wendell Holmes Jr., who wrote for a unanimous court that when speech presents a clear and present danger to national security or public safety, it is not protected by constitutional free speech guarantees. This decision further solidified what has become known as "the clear and present danger" test in First Amendment jurisprudence.

In the dissenting opinion for Pierce et al. v. United States, Justice Holmes argued that the defendants' actions did not present a clear and immediate danger to society or government, which he believed was necessary to justify limiting their freedom of speech under the First Amendment. He contended that simply expressing disapproval of U.S involvement in World War I should not be considered criminal activity unless it incited direct harm or violence. Furthermore, he maintained that citizens have a right to voice opposition against governmental policies without fear of prosecution as long as they do so peacefully and lawfully. In his view, punishing individuals for such expressions would constitute an infringement on their constitutional rights.