 In the early twentieth century , the primary legal test used in the United States to determine if speech could be criminalized was the bad tendency test . Rooted in English common law , the test permitted speech to be outlawed if it had a tendency to harm public welfare . One of the earliest cases in which the Supreme Court addressed punishment after material was published was Patterson v. Colorado ( 1907 ) in which the Court used the bad tendency test to uphold contempt charges against a newspaper publisher who accused Colorado judges of acting on behalf of local utility companies . 
