United States law The law of the United States comprises many levels of Codification (law), codified and uncodified forms of law, of which the supreme law is the nation's Constitution of the United States, Constitution, which prescribes the foundation of the ...

, the bad tendency principle was a

test Test(s), testing, or TEST may refer to: * Test (assessment), an educational assessment intended to measure the respondents' knowledge or other abilities Arts and entertainment * ''Test'' (2013 film), an American film * ''Test'' (2014 film) ...

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 rights, right to freedom of expression has been r ...

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 i ...

" 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 Hol ...

'' (1919), as stated by Justice

Oliver Wendell Holmes Jr. Oliver Wendell Holmes Jr. (March 8, 1841 – March 6, 1935) was an American jurist who served as an associate justice of the Supreme Court of the United States, associate justice of the Supreme Court of the United States, U.S. Supreme Cou ...

Yet eight months later, at the start of the next term in '' Abrams v. United States'' (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 is 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 coalitions ...

and otherwise advocated revolutionary,

anarchist Anarchism is a political philosophy and Political movement, movement that seeks to abolish all institutions that perpetuate authority, coercion, or Social hierarchy, hierarchy, primarily targeting the state (polity), state and capitalism. A ...

, and

socialist Socialism is an economic ideology, economic and political philosophy encompassing diverse Economic system, economic and social systems characterised by social ownership of the means of production, as opposed to private ownership. It describes ...

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 ''Whitney v. California'', 274 U.S. 357 (1927), was a United States Supreme Court decision upholding the conviction of an individual who had engaged in speech that raised a clear and present danger to society.''Whitney v. California''274 U.S. 357 ...

'' (1927), where a woman was convicted simply because of her association with the Communist Party. 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'' (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