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No important case involving free speech was decided by the Court prior to Schenck v. United States, 249 U. S. 47 (1919). Indeed, the summary treatment accorded an argument based upon an individual's claim that the First Amendment protected certain utterances indicates that the Court at earlier dates placed no unique emphasis upon that right. Toledo Newspaper Co. v. United States, 247 U. S. 402 (1918); Fox v. Washington, 236 U. S. 273 (1915); Davis v. Massachusetts, 167 U. S. 43 (1897); see Gompers v. Bucks Stove & Range Co., 221 U. S. 418, 221 U. S. 439 (1911); Robertson v. Baldwin, 165 U. S. 275, 165 U. S. 281 (1897). It was not until the classic dictum of Justice Holmes in the Schenck case that speech per se received that emphasis in a majority opinion. That case involved a conviction under the Criminal Espionage Act, 40 Stat. 217. The question the Court faced was whether the evidence was sufficient to sustain the conviction. Writing for a unanimous Court, Justice Holmes stated that the 'question in every case is whether the words used are used in such circumstances and are of such a nature as to ...

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