1925 June 8

“Gitlow:” Supreme Court Incorporates Free Speech Clause into 14th Amendment

 

In a historic decision, Gitlow v. New York, decided on this day, the Supreme Court held that the Due Process Clause of the Fourteenth Amendment incorporated the Free Speech and Free Press Clauses of the First Amendment, making them applicable to the states. The decision launched the process of incorporating provisions of the Bill of Rights into the Fourteenth Amendment, which became the foundation of the growth of constitutional protection of civil rights and civil liberties revolutions in the decades ahead.

In this case, Benjamin Gitlow, a member of the Communist Party, had been arrested on the first night of the first set of the notorious Palmer Raids on November 7, 1919.was charged with violating the New York State Criminal Anarchy Act (see April 3, 1902) by distributing a document entitled, “The Left Wing Manifesto.” He appealed his conviction to the U.S. Supreme Court. The Court upheld his conviction and the constitutionality of the Criminal Anarchy Act, but in a major advance for civil liberties incorporated the Free Speech and Freedom of the Press Clauses of the First Amendment into the Fourteenth Amendment and made them applicable to the states. The incorporation principle became the basis for the civil liberties and civil rights revolutions in the twentieth century.

Interestingly, Gitlow and his four co-defendants were little interested in appealing their convictions, but Gitlow was persuaded to appeal his by Walter Pollak of the ACLU, which was very interested in establishing new protections for political speech.

Equally interesting, Justice Edward T. Sanford asserted the incorporation doctrine in a single sentence, without any reference to prior cases or the history of the First or Fourteenth Amendment.

Benjamin Gitlow’s subsequent career took some strange twists and turns. He became a member of the Communist Party, but later abandoned his radical views and became a fierce anti-Communist.

The Court: “For present purposes we may and do assume that [the rights of freedom of speech and freedom of the press were] among the fundamental personal rights and ‘liberties’ protected by the due process clause of the Fourteenth Amendment from impairment by the states.”

Learn more about the case: Marc Lendler, Gitlow v. New York: Every Idea an Incitement (2012)

Learn more, and read a discussion and analysis of “The Left Wing Manifesto”:
http://www.marxists.org/history/usa/parties/spusa/1919/0500-berenberg-lwmanifesto.pdf

Learn more about the history of criminal anarchy, criminal syndicalism, sedition, and similar laws: Geoffrey Stone, Perilous Times: Free Speech in Wartime from the Sedition Act of 1798 to the War on Terrorism (2004)

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