In U.S. law, the bad tendency principle was a test that permitted restriction of

freedom of speech Freedom of speech is a principle that supports the freedom of an individual or a community to articulate their opinions and ideas without fear of retaliation, censorship, or legal sanction. The right to freedom of expression has been recogni ...

by government if it is believed that a form of speech has a sole tendency to incite or cause illegal activity. The principle, formulated in '' Patterson v. Colorado'', (1907) was seemingly overturned with the "

clear and present danger ''Clear and Present Danger'' is a political thriller novel, written by Tom Clancy and published on August 17, 1989. A sequel to ''The Cardinal of the Kremlin'' (1988), main character Jack Ryan becomes acting Deputy Director of Intelligence in t ...

" principle used in the landmark case ''

Schenck v. United States ''Schenck v. United States'', 249 U.S. 47 (1919), was a landmark decision of the U.S. Supreme Court concerning enforcement of the Espionage Act of 1917 during World War I. A unanimous Supreme Court, in an opinion by Justice Oliver Wendell Holmes ...

'' (1919), as stated by Justice

Oliver Wendell Holmes, Jr. Oliver Wendell Holmes Jr. (March 8, 1841 – March 6, 1935) was an American jurist and legal scholar who served as an associate justice of the Supreme Court of the United States from 1902 to 1932.Holmes was Acting Chief Justice of the Un ...

Yet eight months later, at the start of the next term in ''

Abrams v. United States ''Abrams v. United States'', 250 U.S. 616 (1919), was a decision by the Supreme Court of the United States upholding the 1918 Amendment to the Espionage Act of 1917 which made it a criminal offense to urge the curtailment of production of the mat ...

'' (1919) the Court again used the bad tendency test to uphold the conviction of a Russian immigrant who published and distributed leaflets calling for a

general strike A general strike refers to a strike action in which participants cease all economic activity, such as working, to strengthen the bargaining position of a trade union or achieve a common social or political goal. They are organised by large co ...

and otherwise advocated revolutionary, anarchist, and socialist views. Holmes dissented in ''Abrams'', explaining how the ''clear and present danger test'' should be employed to overturn Abrams' conviction. The re-emergence of the bad tendency test resulted in a string of cases after ''Abrams'' employing that test, including '' Whitney v. California'' (1927), where a woman was convicted simply because of her association with the

Communist Party A communist party is a political party that seeks to realize the socio-economic goals of communism. The term ''communist party'' was popularized by the title of ''The Manifesto of the Communist Party'' (1848) by Karl Marx and Friedrich Engels. A ...

. The court ruled unanimously that although she had not committed any crimes, her relationship with the Communists represented a "bad tendency" and thus was unprotected. The "bad tendency" test was finally overturned in ''

Brandenburg v. Ohio ''Brandenburg v. Ohio'', 395 U.S. 444 (1969), was a landmark decision of the United States Supreme Court interpreting the First Amendment to the U.S. Constitution. The Court held that the government cannot punish inflammatory speech unless that s ...

'' (1969) and was replaced by the "

imminent lawless action "Imminent lawless action" is one of several legal standards American courts use to determine whether certain speech is protected under the First Amendment of the United States Constitution. The standard was first established in 1969 in the Unite ...

" test.

References

First Amendment Topics
nbsp;– First Amendment Center {{US-law-stub Freedom of expression Legal tests American legal terminology

See also

References