What is the bad tendency doctrine?
Asked by: Prof. Billie Stoltenberg I | Last update: June 14, 2025Score: 4.2/5 (7 votes)
In United States law, the bad tendency principle was a
What is the dangerous tendency test?
The dangerous-tendency test is a legal concept used to determine whether a person or animal has a propensity to cause harm or injury. This test is often used in cases involving dog bites, where the owner may be held liable for injuries caused by their animal.
Is the imminent lawless action test still used?
The imminent lawless action test has largely supplanted the clear and present danger test. The clear and present danger remains, however, the standard for assessing constitutional protection for speech in the military courts.
What case established a bad tendency?
Whitney v. California | Oyez.
What were the potential consequences of applying the bad tendency test to freedom of speech?
The Bad Tendency Doctrine became a tool for this suppression, as it allowed the government to criminalize speech that was seen as having a deleterious effect on public order or national security.
Dangerous Tendency Doctrine Explained
What is bad tendency doctrine?
In United States law, the bad tendency principle was a test that permitted restriction of freedom of speech by government if it is believed that a form of speech has a sole tendency to incite or cause illegal activity.
What are 2 limitations on freedom of speech?
Freedom of speech does not include the right:
To incite imminent lawless action. Brandenburg v. Ohio, 395 U.S. 444 (1969). To make or distribute obscene materials.
Is the bad tendency test still used?
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.
Was Whitney V. California overturned?
The ruling was explicitly overruled by Brandenburg v. Ohio in 1969.
Does hate speech violate the First Amendment?
In the United States, hate speech receives substantial protection under the First Amendment, based upon the idea that it is not the proper role of the government to attempt to shield individuals from ideas and opinions they find unwelcome, disagreeable, or even deeply offensive.
Which action is not protected by the First Amendment?
Incitement to Imminent Lawless Action
The First Amendment does not protect speech that incites people to break the law, including to commit acts of violence.
What are fighting words called?
Chaplinsky decision
These include the lewd and obscene, the profane, the libelous, and the insulting or "fighting" words – those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.
What are three types of speech protected by the 1st?
The Court has long considered political and ideological speech to be at the core of the First Amendment, including speech concerning “politics, nationalism, religion, or other matters of opinion.” This speech can take forms beyond the written or spoken word, such as funding or symbolic acts.
Who created the bad tendency test?
Justice Oliver Wendell Holmes, while delivering the ruling, articulated this test, indicating that speech creating a clear and present danger, such as falsely shouting 'fire' in a crowded theater, was not protected exchange under the First Amendment.
What is the Barker test?
3 The Barker test-which re- quires courts to balance four factors-namely, the length of the delay, the reason for the delay, when the defendant asserted his right to speedy trial, and the prejudice suffered by the defendant as a result of the delay-represented no radical innovation in speedy trial jurisprudence, but ...
What is the Whitney Doctrine?
To justify suppression of free speech, there must be reasonable ground to fear that serious evil will result if free speech is practiced. There must be reasonable ground to believe that the danger apprehended is imminent. There must be reasonable ground to believe that the evil to be prevented is a serious one.
What are criminal syndicalism laws?
Numerous states and U.S. territories enacted criminal syndicalism laws in the late 1910s and early 1920s with the purpose of making it illegal for individuals or groups to advocate radical political and economic changes by criminal or violent means.
What is the clear and present danger test?
The clear and present danger test features two independent conditions: first, the speech must impose a threat that a substantive evil might follow, and second, the threat is a real, imminent threat. The court had to identify and quantify both the nature of the threatened evil and the imminence of the perceived danger.
What is the doctrine of bad tendency?
According to this doctrine, the government will have the capacity to restrict certain speech if it can prove that a speech will have a tendency to cause or incite illegal activities.
What is obscene speech?
Obscenity is a category of speech that is unprotected by the First Amendment's Freedom of Speech and Expression protections. Obscenity laws are concerned with prohibiting lewd, or extremely offensive words or pictures in public. All fifty states have individual laws controlling obscene material.
What is the imminent lawless action test?
Under the imminent lawless action test, speech is not protected by the First Amendment if the speaker intends to incite a violation of the law that is both imminent and likely. While the precise meaning of "imminent" may be ambiguous in some cases, the court provided later clarification in Hess v.
Is profanity protected by the First Amendment?
The Court has held that unless “fighting words” are involved, profane language has First Amendment protection. Chaplinsky v. New Hampshire, 315 U.S. 568 (1942). The concern with First Amendment protection for the use of profanity is particularly pronounced for political speech.
How did Schenck violate the Espionage Act?
Facts of the case
The leaflets urged the public to disobey the draft, but advised only peaceful action. Schenck was charged with conspiracy to violate the Espionage Act of 1917 by attempting to cause insubordination in the military and to obstruct recruitment.
What speech is not protected by the First Amendment?
The following speech may not be protected: Speech that is intended and likely to provoke imminent unlawful action (“incitement”). Statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals (“true threats”).