Bad Tendency Test
BAD TENDENCY TEST
In 1920 New York convicted Benjamin Gitlow of violating its statute prohibiting "advocating, advising or teaching the doctrine that organized government should be overthrown by force." Gitlow had published in the journal Revolutionary Age a "Left Wing Manifesto," thirty-four pages of Marxist rhetoric calling for class struggle leading to revolution and the dictatorship of the proletariat.
In gitlow v. new york (1925) Gitlow's counsel argued in the Supreme Court that since the manifesto contained no direct incitement to criminal action, Gitlow must have been convicted under the "bad tendency test." That test was borrowed from the eighteenth-century English law of seditious libel which made criticism of government criminal because such criticism might tend to contribute to government's eventual collapse.
This bad tendency test ran counter to the clear and present danger test of schenck v. united states (1919). In Gitlow Justice edward sanford virtually adopted the bad tendency test for instances in which a legislature had decided that a particular variety of speech created a sufficient danger. Even though there was no evidence of any effect resulting from the Manifesto's publication, the Court stressed that its language constituted advocacy of
mass action which shall progressively foment industrial disturbances, and, through … mass action, overthrow … government.… The immediate danger is none the less real and substantial because the effect of a given utterance cannot be accurately foreseen.…A single revolutionary spark may kindle a fire that, smoldering for a time, may burst into a sweeping and destructive conflagration.… [The State] cannot reasonably be required to defer the adoption of measures for its own peace and safety until the revolutionary utterances lead to … imminent and immediate danger of its own destruction.
Justices oliver wendell holmes and louis d. brandeis dissented in Gitlow, invoking the clear and present danger test. When that test came to dominate the Court's first amendment opinions in the 1930s and early 1940s, the bad tendency test seemed to be overthrown.
Nevertheless much of Sanford's approach survived. Judge learned hand's "discounting formula" as adopted in dennis v. united states (1951) allows speech to be suppressed "where the gravity of the evil, discounted by its improbability" justifies suppression. As Dennis itself illustrates, if the danger is painted as sufficiently grave, speech may be suppressed even if there is a very low probability that the evil will occur or that the particular speech in question will contribute to that occurrence. In Dennis the Court replaced the present danger test with the requirement that where an organized subversive group exists, the group intends to bring about overthrow "as speedily as the circumstances would permit." Such an approach echoed Sanford's plea that the government need not wait until the danger of revolution is imminent.
Linde, Hans 1970 "Clear and Present Danger" Reexamined: Dissonance in the Brandenburg Concerto. Stanford Law Review 22:1163–1186.