A test used to analyze free speech issues that derived from the English common law of libel synthesized by Blackstone before the American Revolution. This test measured the legality of speech by its tendency to cause an illegal action. Scholars frequently attacked the bad tendency test as a vestige of English law that could not be reconciled with the democratic principles of the First Amendment, but federal and state courts at all levels typically applied it to restrict expression without viewing the First Amendment as requiring that speech be treated differently from other categories of attempts or crimes.
Two Supreme Court decisions written by Justice Oliver Wendell Holmes in the decade before World War I illustrate the bad tendency test in operation. Upholding the contempt conviction of an editor who did not have an opportunity to prove truth as a defense, Holmes observed in Patterson v. Colorado (1907) that newspaper criticism of judicial behavior in pending cases, even if accurate, “tends to obstruct the administration of justice” (p. 462). In Fox v. Washington (1915), a state statute itself incorporated the bad tendency test by defining as a misdemeanor the publication of written matter “having a tendency to encourage or incite the commission of any crime, breach of the peace or act of violence” (p. 275). Writing for a unanimous Court, Holmes reasoned that an article entitled “The Nude and the Prudes,” which encouraged a boycott against anyone interfering with nude bathing, “by indirection but unmistakably” encouraged violations of laws against indecent exposure (p. 277). Holmes emphasized that speech would be punished for its bad tendency even without an explicit statutory prohibition.
The Supreme Court, through Justice Holmes, continued to apply the bad tendency test in the trilogy of Espionage Act cases commonly thought to inaugurate the modern First Amendment tradition in 1919. The Espionage Act punished attempts to cause insubordination in the military and obstruction of recruitment. Attorneys for the defendants argued that the First Amendment protection for discussion of government policies prohibited juries from using inferences about the tendency of antiwar speech as the basis for finding criminal intent to commit these crimes. Following the analysis of his prewar opinions, Holmes summarily rejected this argument without fully addressing it. “If the act (speaking, or circulating a paper), its tendency and the intent with which it is done are the same,” Holmes wrote in Schenck v. United States (1919), “we perceive no ground for saying that success alone warrants making the act a crime” (p. 52). Holmes expressed the bad tendency test metaphorically in Frohwerk v. United States (1919) by observing that “a little breath would be enough to kindle a flame” (p. 209). And in Debs v. United States (1919), Holmes concluded that a jury could find that the antiwar speeches of Eugene Debs, the recent socialist candidate for president, “had as their natural tendency and reasonably probable effect to obstruct the recruitment service” even if the relationship between the words and the crime had been indirect and incidental (p. 216). Evaluating the tendency of language as evidence of the speaker's intent, Holmes added, is a principle “too well established and too manifestly good sense to need citation of the books” (p. 216).
The Supreme Court majority continued to use the bad tendency test to reject First Amendment claims throughout the 1920s. However, Justices Holmes and Louis Brandeis, beginning with their dissent in Abrams v. United States in the fall of 1919, relied on the words “clear and present danger,” a phrase Holmes used casually and interchangeably with the bad tendency test in Schenck, to construct a First Amendment test that provided greater protection for speech by requiring a more immediate connection between speech and crime. In their frequent dissents, Holmes and Brandeis repeatedly claimed that speech cannot constitutionally be punished for its indirect, remote, or possible tendency.
By Herndon v. Lowry in 1937, the Supreme Court majority adopted a rigorous version of the clear and present danger test while rejecting the “vague and indeterminate” standard of “dangerous tendency” as a “dragnet” that violates the First Amendment (pp. 256, 263). Dissenting four years later in Bridges v. California, Justice Felix Frankfurter pointed out that the phrase clear and present danger “itself is an expression of tendency and not of accomplishment, and the literary difference between it and ‘reasonable tendency’ is not of constitutional dimension” (p. 295). Ironically, though cases like Herndon and Bridges required a much closer connection between speech and crime than the old bad tendency test, subsequent reformulations of clear and present danger, especially in affirming the convictions of Communist party leaders in Dennis v. United States (1951), diluted the immediacy requirement to make the two tests quite similar.
See also Speech and the Press.
Bibliography
- David M. Rabban, The First Amendment in Its Forgotten Years,
Yale Law Journal 90 (January 1981): 514–595
— David M. Rabban
