Emerging by the early nineteenth century, the bad tendency test remained the predominant judicial approach to determining the scope of free expression for over a century. The government could not impose prior restraints on expression, but it could impose criminal penalties for speech or writing that had bad tendencies or likely harmful consequences. Many courts added that the criminal defendant, to be convicted, must also have intended harmful consequences. Even so, under the doctrine of constructive intent, the courts typically reasoned that a defendant was presumed to have intended the natural and probable consequences of his or her statements. If a defendant’s expression was found to have bad tendencies, then the defendant’s criminal intent would be inferred.
People v. Croswell (1804), a seditious libel prosecution arising from the criticism of public officials, manifested the bad tendency approach. Croswell held that such expression is protected if it is truthful and published for good motives and justifiable ends. Statements with bad tendencies, though, contravened the common good and were therefore punishable. The Croswell standard, in effect, took Blackstone’s justification for punishing seditious libel and transformed it into the definition of seditious libel. According to Blackstone, criticism of governmental officials was subject to criminal punishment because of its bad or pernicious tendencies. Under the Croswell standard, criticism of public officials was subject to criminal punishment if it had bad tendencies.
In a series of unanimous U.S. Supreme Court decisions arising during the World War I era, Justice Oliver Wendell Holmes, Jr., articulated the scope of protection under the First Amendment in a variety of ways. Regardless of Holmes’s precise phrasings, however, he resolved each case in accordance with the bad tendency test. In Schenck v. United States (1919), he used clear-and-present-danger language that in later cases would be reinterpreted more broadly: ‘‘The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.’’ In Frohwerk v. United States (1919), Holmes concluded: ‘‘It is impossible to say that it might not have been found that the circulation of the paper was in quarters where a little breath would be enough to kindle a flame and that the fact was known and relied upon by those who sent the paper out.’’ And in Debs v. United States (1919), Holmes approved a jury instruction that presented the bad tendency test in conventional terms: the jurors, as charged, ‘‘could not find the defendant guilty for advocacy of any of his opinions unless the words used had as their natural tendency and reasonably probable effect [to violate the law], and unless the defendant had the specific intent to do so in his mind.’’ Moreover, Holmes added that the jury could find constructive intent. In each of these cases, then, the Court relied on the bad tendency test despite Holmes’s inconsistent phrasings.
STEPHEN M. FELDMAN
References and Further Reading
Cases and Statutes Cited