Benjamin Gitlow Trials: 1920-25

The Fourteenth Amendment, passed after the Civil War, was intended to prevent the former Confederate states from depriving freed slaves of their rights by making the Bill of Rights apply to states as well as the federal government. In 1833, in Baron v. Baltimore, the Supreme Court had ruled that the Bill of Rights did not apply to the states. Without the amendment, everyone knew there would be no freedom for ex-slaves. But in 1873, seven years after the passage of the amendment, the Supreme Court effectively nullified it. In the Slaughterhouse Cases, it held that there were two forms of citizenship—U.S. citizenship and state citizenship. The amendment guaranteed the rights of all persons as U.S. citizens, but had nothing to do with what rights they enjoyed as state citizens.

In 1897, in Allgeyer v. Louisiana, the Court ruled that the Fourteenth Amendment protected 'liberty of contract" by corporations from interference by state governments. It did not hold, however, that the amendment prevented states from interfering with the personal liberties, like freedom of speech, guaranteed by the Bill of Rights.

On July 12, 1922, the appellate division of the court of appeals upheld Gitlow's conviction. He went back to Sing Sing, where the inmates nicknamed him Mr. In And Out. In December, Mr. In And Out was out again, released on bail when the U.S. Supreme Court agreed to hear his appeal. The case was argued before the Court twice in 1923.