bad tendency
Bad tendency was a legal standard used to determine whether political speech was protected by the first amendment. Speech that was harmful to public welfare or that could incite illegal acts failed the bad tendency test; and therefore, was not protected by freedom of speech. This test was criticized for its broad application which allowed the government to heavily suppress contrary views without proving the speech caused an immediate threat.
The bad tendency test was primarily used by the U.S. government during World War I to restrict war criticisms that would harm national unity and security. For example, in Abrams v U.S., 250 U.S. 616 (1919) the Supreme Court held that the anti-war leaflets/propaganda were not protected speech because they intended to provoke public resistance and strikes against U.S. war efforts. This case further indicated that speech protections were limited during wartime. However, this test was replaced by the Brandenburg test, established in Brandenburg v. Ohio, 395 US 444 (1969), which provides stronger protections of political expression.
[Last reviewed in March of 2026 by the Wex Definitions Team]
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