Bad Tendency Test Cases

The bad tendency test was mostly used to determine whether criticism of World War I was protected by the First Amendment. The end result of the bad tendency test was that during the wartime era the Supreme Court ruled in favor of the government’s anti-seditious behavior almost without fail. Among the most well-known cases related to the First Amendment were Abrams v. United States (1919), Gitlow v. New York (1925), and Whitney v. California (1927).

Abrams v. United States (1919)

In Abrams v. U.S., the Supreme Court in 1919 upheld the convictions of
several individuals under the 1918 Sedition Act for distributing leaflets
opposed to U.S. intervention in the Russian civil war involving the
Bolsheviks.

Fox v. Washington (1915)

The ruling in Fox v. Washington (1915), dealing with an article on nude
bathing, was issued before the Court recognized that the First Amendment
limited state governments.

Gitlow v. New York (1925)

In Gitlow v. New York, the Court applied free speech and press protection
to the states through the due process clause of the the Fourteenth
Amendment.

Whitney v. California (1927)

Justice Louis D. Brandeis’s concurring opinion in defense of free speech in
Whitney v. California (1927) has become a milestone in First Amendment
jurisprudence.

Bad Tendency Test Cases

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