The First Amendment Bad Tendency of Speech Doctrine
![handle is hein.journals/rutlr43 and id is 519 raw text is: THE FIRST AMENDMENT BAD TENDENCY
OF SPEECH DOCTRINE
Edward J. Bloustein*
I. INTRODUCTION
The bad tendency1 rule of first amendment adjudication jus-
tified limitations on speech on the basis of some tendency, how-
ever remote, to bring about acts in violation of law, and without
regard to any evidence of the immediacy or probability of such
harm.2 Although it was used in deciding numerous lower court
cases,3 and a line of United States Supreme Court cases,' there is
no clear, precise, and systematic judicial statement of its import,
and the standard has long since been judicially discredited.5
These days, most first amendment scholars mention the bad
* B.A., New York University 1948; B. Phil., Oxford University 1950; Ph.D., J.D., Cornell
University 1954, 1959. Dr. Bloustein, who died on December 9, 1989, served as President
of Rutgers University from 1971 until his death. The text of this article is based upon a
manuscript draft left partially uncorrected at the time of the author's death.
1. Natural, evil, dangerous, or reasonable are sometimes used interchangeably
with bad to name and/or characterize this doctrine.
2. Chafee, Freedom of Speech in Wartime, 32 HARv. L. REv. 932, 948 (1919).
3. See Rabban, The First Amendment in Its Forgotten Years, 90 YALE L.J. 514, 533-36,
543-50 (1981) [hereinafter Rabban, Forgotten Years] and Rabban, The Emergence of
Modern First Amendment Doctrine, 50 U. CHI. L. REV. 1205, 1229-35 (1983) [hereinafter
Rabban, Emergence] for a survey of state court cases.
4. See United States ex rel. Turner v. Williams, 194 U.S. 279 (1904); Toledo Newspaper
Co. v. United States, 247 U.S. 402 (1918); Abrams v. United States, 250 U.S. 616 (1919);
Debs v. United States, 249 U.S. 211 (1919); Frohwerk v. United States, 249 U.S. 204
(1919); Schenck v. United States, 249 U.S. 47 (1919); Stilson v. United States, 250 U.S. 583
(1919); Gilbert v. Minnesota, 254 U.S. 325 (1920); O'Connell v. United States, 253 U.S. 142
(1920); Pierce v. United States, 252 U.S. 239 (1920); Schaefer v. United States, 251 U.S.
466 (1920); United States ex rel. Milwaukee Social Democratic Publishing Co. v. Burleson,
255 U.S. 407 (1921); Gitlow v. New York, 268 U.S. 652 (1925); Burns v. United States, 274
U.S. 328 (1927); Whitney v. California, 274 U.S. 357 (1927); Fiske v. Kansas, 274 U.S. 380
(1927). See infra text accompanying and notes 146-55 for a discussion of Professor Gun-
ther's suggestion that Fiske may not have been decided on first amendment grounds. G.
GUNTHER, CASES AND MATERIALS ON CONSTITUTIONAL LAW 1149 (9th ed. 1975). Professor
Rabban identifies Patterson v. Colorado, 205 U.S. 454 (1907), and Fox v. Washington, 236
U.S. 273 (1915), as among the Supreme Court first amendment bad tendency cases.
Rabban, Forgotten Years, supra note 3, at 533-36. These are bad tendency cases, but
not first amendment cases. See infra notes 33-36 and accompanying text.
5. See American Communications Ass'n v. Douds, 339 U.S. 382, 394-95 (1950); see also
DeJonge v. Oregon, 299 U.S. 353 (1937); Herndon v. Lowry, 301 U.S. 242, 258-61 (1937);
Dennis v. United States, 341 U.S. 494, 506-07 (1951).
507](ViewImageLocal?handle=hein.journals/rutlr43&div=25&collection=&method=preview&ext=.png&size=3)
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