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.
Although usually associated with Debs v. United States 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
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
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
Socialist Party leader Eugene Debs.
Almost immediately, the test came under fire, with Justice Holmes dissenting against the test’s application in Abrams v. United States
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
Chafee, Zechariah, Jr. Free Speech in the United States. Cambridge, Mass.: Harvard University Press, 1941. Downs, Donald. Nazis in Skokie. Notre Dame, Ind.: University of Notre Dame Press, 1985. Greenawalt, Kent. Speech, Crime and the Uses of Language. New York: Oxford University Press, 1989. Kersch, Ken I. Freedom of Speech: Rights and Liberties Under the Law. Santa Barbara, Calif.: ABC-Clio, 2003.
Abrams v. United States
Brandenburg v. Ohio
Clear and present danger test
Dennis v. United States
First Amendment speech tests
Gitlow v. New York
Holmes, Oliver Wendell
Schenck v. United States
Whitney v. California
Yates v. United States