Oliver Wendell Holmes Jr.

He wrote the clear and present danger test in Schenck, then dissented in favour of free speech in Abrams later the same year.

In Schenck v. United States (1919), Holmes held for a unanimous Court that an attempt, purely by language, could be prosecuted if the expression, in the circumstances in which it was uttered, posed a "clear and present danger" that the legislature had properly forbidden. He also declared that the First Amendment would not protect a person "falsely shouting fire in a theatre and causing a panic". Later in 1919, in Abrams v. United States, he dissented in support of freedom of speech, writing that the best test of truth is the power of the thought to get itself accepted in the competition of the market. Some later commentators accused him of inconsistency, though he evidently believed he was adhering to his own precedent.

He said the Constitution does not enact laissez faire, deferring to the legislature rather than out of sympathy for workers.

In Lochner v. New York (1905), the Court struck down a New York statute that prohibited employees from being required or permitted to work in a bakery more than sixty hours a week, finding that it interfered with the right of contract protected by the Fourteenth Amendment. In his brief dissent, Holmes said the majority had decided on the basis of the economic theory of laissez faire, and wrote that the Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics. He supported labor here not out of sympathy for workers, but because of his tendency to defer to legislatures.