Bad Tendency Or Clear And Present Danger

4 Pages 997 Words

The progression of Supreme Court cases starting 1919 began a debate about the extent of the First Amendment’s protection of sedition and also how it would be defined. The first explanation was called “bad tendency,” and it was way too vague and subjective to be relied on. Next, through Schenck v. U.S. the famous “fire in a movie theater” example was given to describe the “Clear and Present Danger” idea. Through each case the precedent was becoming more and more refined to create a more detailed law in prosecuting sedition.
An old existing explanation called “bad tendency” was the only precedent for prosecuting cases, which compromised the given freedoms of speech and press. This idea of “bad tendency” came from English common law that even justified American ideas like the Sedition Act if 1798. No definite injury needs to be shown to prove this theory. The actual “bad tendency” terms are as follows:
“If words have a tendency to undermine the authority of government to corrupt the morals of some members of society, the writer or speaker can be punished.” (Holsinger & Dilts – 49).

Under this precedent there was almost always a conviction since only a propensity towards harm can prove guilt. Through several World War I sedition cases, the “bad tendency” test was used in trials for Socialists, and draft dodgers. This precedent would not be changed until 1919 with another Socialist case which involved a man named Charles Schenck. At this point in defense, counsel finally decided to argue that “bad tendency” meddled with the First Amendment’s right to free speech.
In Schenck v. U.S. , Charles Schenck the secretary of the Socialist party printed brochures urging citizens to oppose the draft during World War I. He was charged with violating the Espionage Act, found guilty, and then sentenced to jail. The case was brought to the Supreme Court under strict scrutiny. With this ...