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[case]Debs v. United States[Debs v. United States] (1919), the bad tendency testFirst Amendment speech tests actually has its genesis in Schenck v. United States[case]Schenck v. United States[Schenck v. United States] (1919). 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 HolmesHolmes, Oliver Wendell 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 dangerClear and present danger test 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[case]Debs v. United States[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.

Socialist Party leader Eugene Debs.

(Library of Congress)

Almost immediately, the test came under fire, with Justice Holmes dissenting against the test’s application in Abrams v. United States[case]Abrams v. United States[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[case]Brandenburg v. Ohio[Brandenburg v. Ohio], that the Court finally abandoned the bad tendency test completely and developed the modern, highly protective standard for freedom of speech.

• 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

Espionage acts

First Amendment speech tests

Gitlow v. New York

Holmes, Oliver Wendell

Schenck v. United States

Unprotected speech

Whitney v. California

Yates v. United States