1920 December 13

Brandies Dissents as Supreme Court Upholds Minnesota Conviction of Anti-War Leader


In one of the last World War I free speech cases, Gilbert v. Minnesota, decided on this day, the Supreme Court upheld the conviction of Joseph Gilbert in Minnesota for a speech opposing the war. Gilbert was a leader of the Nonpartisan League, which was the leading anti-war organization in the state. A Minnesota law made it a crime to advocate that men should not enlist in the armed forces or to advocate that people should not assist the federal government in the prosecution of the war. Gilbert was arrested for a speech opposing the war at a public meeting on August 18, 1917.

Given the Supreme Court’s previous decisions upholding the conviction of antiwar speakers under the Espionage Act (Schenck v. United States, March 3, 1919; Debs v. United States, March 10, 1919), the court’s decision in Gilbert was not surprising. Two aspects of the case are notable, however. The first is that it involved a state law. Two justices, including Louis Brandeis, argued that the federal government had exclusive jurisdiction of the subject of the law: the army and the navy, and the prosecution of war.

The other notable aspect of the case was Justice Louis Brandeis dissent regarding freedom of speech. Brandies had joined Justice Oliveer Wendell Holmes’ eloquent dissent in Abrams v, United States (November 10, 1919), in which Holmes broke with his own “clear and present danger” test, which he had enunciated in Schenck v. United States (March 3, 1919). In Gilbert on this day, Brandeis developed his view of the First Amendment even further, writing that:

“The right to speak freely concerning functions of the federal government is a privilege or immunity of every citizen of the United States which, even before the adoption of the Fourteenth Amendment, a state was powerless to curtail,” and also that “the liberty guaranteed by the Constitution, . . . does not include liberty to teach, either in the privacy of the home or publicly, the doctrine of pacifism; so long, at least, as Congress has not declared that the public safety demands its suppression. I cannot believe that the liberty guaranteed by the Fourteenth Amendment includes only liberty to acquire and to enjoy property.”

Brandeis’ dissent in this case anticipated his eloquent and more famous opinion regarding freedom of speech in Whitney v. California on May 16, 1927.

Read: Melvin I. Urofsky, Louis D. Brandeis: A Life (2009)

Watch a short documentary on Brandeis: http://www.youtube.com/watch?v=XwDP5vWXd3g

Read the important new book on free speech: Timothy Garton Ash, Free Speech: Ten Principles for a Connected World (2016)

Learn more: Philippa Strum, Brandeis on Democracy (1995)

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