Bad tendency test
The "bad tendency test" is a legal standard that originated in the early 20th century, notably applied by the U.S. Supreme Court in 1919. This test determined that speech with a "tendency" to incite unlawful acts was not protected under the First Amendment. Rooted in English common law, its application was notably seen in cases involving individuals critical of the U.S. government, including socialists and communists, with significant cases such as Schenck v. United States serving as foundational examples. In Schenck, the Court established that speech could be restricted if it posed a "clear and present danger" of producing harmful outcomes. However, the bad tendency test was criticized for its broad interpretation, often allowing government suppression of dissenting viewpoints without the necessity of proving an immediate threat. Critics, including Justice Oliver Wendell Holmes, argued against its use, especially in cases like Abrams v. United States. Over time, the test was challenged and ultimately replaced by more protective standards, culminating in the Brandenburg v. Ohio decision in 1969 which introduced the "imminent lawless action" test, marking a significant shift towards greater protection for free speech.
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Bad tendency test
- Relevant amendment: First
Description: A test first applied by the Supreme Court in 1919, according to which speech that had a “tendency” to incite unlawful acts was not constitutionally protected.
Significance: Throughout much of the twentieth century, the Court used the bad tendency test broadly to restrict speech critical of the U.S. government or its policies.
The bad tendency test was based on English common law and can be seen in its infancy in the Supreme Court cases Turner v. Williams (1904) and Patterson v. Colorado (1907). Usually associated with Debs v. United States (1919), the bad tendency test actually has its genesis in Schenck v. United States (1919), held in the Ninth Circuit Court of Appeals. In that case, the Supreme Court decided that Charles Schenck, a leader of the Socialist Party, was guilty of a conspiracy to violate the 1917 Espionage Act by distributing flyers denouncing the draft. As part of the opinion in Schenck, Justice Oliver Wendell Holmes made it clear that not all speech can or should be protected by invoking the now-famous example of a person yelling “fire” in a crowded theater. Drawing the line between protected and unprotected speech, however, has proven difficult. In Schenck, the Court established the following test for determining whether speech should be protected:
The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about substantive evils that Congress has a right to prevent.
As applied, this test was far less protective of free speech than the term “clear and present danger” might suggest. No showing of present danger was required in Schenck or subsequent cases. The Court held that if the “tendency and intent” of the speech was to encourage illegal action, then the speech was not protected by the First Amendment. Furthermore, the Court was often willing to assume a bad tendency and intent if the speech was critical of the government or its policies. The bad tendency test was notoriously applied just weeks after Schenck in Debs v. United States when the perennial presidential candidate Eugene Debs was convicted of conspiracy for telling a crowd that he was sympathetic toward those who were trying to obstruct the draft. He was sentenced to ten years in prison for the crime.
Almost immediately, the test came under fire, with Justice Holmes dissenting against the test’s application in Abrams v. United States (1919). His was a lone voice, however, and the bad tendency test continued to be applied. For example, in Gitlow v. New York (1925), Whitney v. California (1927), and Dennis v. United States (1951), members of either the Socialist or Communist Parties were convicted of breaking the law because they were found to have advocated illegal action by distributing flyers or assembling in groups.
Although the Court employed various First Amendment tests after Debs, it did not begin to seriously move away from the substance of the bad tendency test until Yates v. United States in 1957. In Yates, the Court reversed the conspiracy convictions of fourteen “second-string” Communist Party officials, drawing a line between advocacy of an abstract principle and advocacy of action. Even so, it was not until 1969, in Brandenburg v. Ohio, that the Court finally abandoned the bad tendency test completely and developed the modern, highly protective standard for freedom of speech, beginning with the imminent lawless action test.
Bibliography
Chafee, Zechariah, Jr. Free Speech in the United States. Harvard University Press, 1941.
Downs, Donald. Nazis in Skokie. University of Notre Dame Press, 1985.
Gibson, Tobias T. "Bad Tendency Test." Free Speech Center, 10 Jan. 2024, web.archive.org/web/20240202101402/https://firstamendment.mtsu.edu/article/bad-tendency-test. Accessed 1 Oct. 2024.
Greenawalt, Kent. Speech, Crime and the Uses of Language. Oxford University Press, 1989.
Stone, Geoffrey R. "The Origins of the "Bad Tendency" Test: Free Speech in Wartime." Supreme Court Review, vol. 2002, no. 9, 2002, chicagounbound.uchicago.edu/supremecourtrev/vol2002/iss1/9.