Gitlow v. New York

Ironically enough, when the Court finally ruled on the Gitlow case at the end of the following term in 1925, the ruling was that Gitlow's conviction was proper, but the significance of the case was a victory for freedom of speech. The reason was that two separate questions were involved in the Gitlow appeal. Both were questions which had been addressed numerous times by U.S. courts at all levels, up to and including the Supreme Court: One of the issues received the same judgment which had been fashionable in previous decisions, while the other for the first time was decided with a much different verdict.

The big change was that for the first time the Court decided that the Fourteenth Amendment, which forbade the states to deprive citizens of their liberty without due process of law, also forbade them to deny their citizens freedom of speech without due process.

For present purposes we may and do assume that freedom of speech and of the press--which are protected by the First Amendment from abridgement by Congress--are among the fundamental personal rights and `liberties' protected by the due process clause of the Fourteenth Amendment from impairment by the states.

This was the exact opposite of several rulings from the nineteenth century. In fact, the precedent, which had been cited many times and which seemed written in stone, held that the "liberty" referred to in the Fourteenth Amendment merely restricted the states from exacting physical restraints, such as imprisonment or confiscation of property, without due process. The other provisions of the Bill of Rights, i.e., freedom of speech, the press, religion, were all only binding to the federal government, and the individual states were free to agree with or ignore these freedoms as they saw fit. Over the first two decades of the twentieth century the Court had begun to waffle on the issue, sometimes hedging on the question, and sometimes declining to address it, but Justice Sanford's opinion on the Gitlow case was still an alarming step toward freedom of speech and away from states' rights.

That left, then, the second question of the trial, that of whether the state of New York had ample reason to deny Gitlow his freedom of speech to protect the public interest. The Court ruled, not unusually according to the sentiments of the times, that the manifesto was a threat to public stability and Gitlow's conviction was proper and just. Justice Sanford explained:

When the legislative body has determined generally, in the constitutional exercise of its discretion, that utterances of a certain kind involve the danger of substantive evil that they may be punished, the question whether any specific utterance coming within the specified class is likely, in and of itself, to bring about the substantive evil, is not open to consideration.

The dissent, by Justices Holmes and Brandeis, would come to be the litmus test on freedom of speech issues in the coming decades:

If what I think the correct test is applied, it is manifest that there was no present danger of an attempt to overthrow the government by force on the part of the admittedly small minority who shared the defendant's views. It is said that this manifesto was more than a theory, that it was an incitement. Every idea is an incitement. It offers itself for belief and if believed it is acted upon unless some other belief outweighs it or some failure of energy stifles the movement at birth. The only difference between the expression of an opinion and an incitement in the narrower sense is the speaker's enthusiasm for the result. Eloquence may set fire to reason. But whatever may be thought of the redundant discourse before us it had no chance of starting a present conflagration. If in the long run the benefits expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way.