In United States law, the bad tendency principle was a test that permitted restriction of freedom of speech by government if it was believed that a form of speech had 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" principle used in the landmark case Schenck v. United States (1919), as stated by Justice Oliver Wendell Holmes Jr. 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 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. 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" test.
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Bad tendency in the context of Gitlow v. New York
Gitlow v. New York, 268 U.S. 652 (1925), was a landmark decision of the United States Supreme Court holding that the Fourteenth Amendment to the United States Constitution had extended the First Amendment's provisions protecting freedom of speech and freedom of the press to apply to the governments of U.S. states. Along with Chicago, Burlington & Quincy Railroad Co. v. City of Chicago (1897), it was one of the first major cases involving the incorporation of the Bill of Rights. It was also one of a series of Supreme Court cases that defined the scope of the First Amendment's protection of free speech and established the standard to which a state or the federal government would be held when it criminalized speech or writing.
The case arose from the conviction under New York state law of Socialist politician and journalist Benjamin Gitlow for the publication of a "left-wing manifesto" in 1919. In a majority opinion joined by six other justices, Associate Justice Edward Terry Sanford upheld the conviction under the bad tendency test, writing that government may suppress or punish speech that directly advocates the unlawful overthrow of the government. Associate Justice Oliver Wendell Holmes Jr. dissented, arguing that state and federal governments should only be permitted to limit free speech under the "clear and present danger" test that he had previously laid out in Schenck v. United States (1919).
Bad tendency in the context of Clear and present danger
Clear and present danger was a doctrine adopted by the Supreme Court of the United States to determine under what circumstances limits can be placed on First Amendment freedoms of speech, press, or assembly. Created by Justice Oliver Wendell Holmes Jr. to refine the bad tendency test, it was never fully adopted and both tests were ultimately replaced in 1969 with Brandenburg v. Ohio's "imminent lawless action" test.