Benjamin Gitlow Trials: 1920-25

On June 8, 1925, the Supreme Court issued its decision. Gitlow's conviction was affirmed by a 7-2 vote. The two dissenters, Louis Brandeis and Oliver Wendell Holmes, had long been called "the dangerous twosome" by conservatives.

"Gitlow v. New York is one of the landmark cases in constitutional law," says Leo Pfeffer, a lawyer generally regarded as one of the nation's leading authorities on the Bill of Rights. "Its importance has been obscured by the fact that the actual holding was to affirm the conviction of a radical who had exercised freedom of speech; but this was merely incidental."

"For the first time," Pfeffer wrote in This Honorable Court, "the Court proceeded on the assumption that liberty in the due process clause included liberty of expression."

After reviewing Gitlow's case, Justice Edward T. Sanford, writing the majority decision, wrote, "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."

So, offhandedly, without fanfare, without notice in the press, the Court made one of the great advances in American civil liberties. Gitlow's conviction was upheld, but it was followed by a series of other cases involving people convicted of essentially the same crime that were reversed.

For the moment, Mr. In And Out had to go back in. But on December 11, 1925, New York governor Alfred E. Smith pardoned the stubborn radical.