Gitlow v. New York
Encyclopedia
Gitlow v. New York, , was a decision by the United States Supreme Court, which ruled that the Fourteenth Amendment
Fourteenth Amendment to the United States Constitution
The Fourteenth Amendment to the United States Constitution was adopted on July 9, 1868, as one of the Reconstruction Amendments.Its Citizenship Clause provides a broad definition of citizenship that overruled the Dred Scott v...

 to the United States Constitution
United States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...

 had extended the reach of certain provisions of the First Amendment
First Amendment to the United States Constitution
The First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering...

—specifically the provisions protecting freedom of speech
Freedom of speech
Freedom of speech is the freedom to speak freely without censorship. The term freedom of expression is sometimes used synonymously, but includes any act of seeking, receiving and imparting information or ideas, regardless of the medium used...

 and freedom of the press
Freedom of the press
Freedom of the press or freedom of the media is the freedom of communication and expression through vehicles including various electronic media and published materials...

—to the governments of the individual states
U.S. state
A U.S. state is any one of the 50 federated states of the United States of America that share sovereignty with the federal government. Because of this shared sovereignty, an American is a citizen both of the federal entity and of his or her state of domicile. Four states use the official title of...

.

Background and ruling

The Supreme Court previously held, in Barron v. Baltimore
Barron v. Baltimore
Barron v. Mayor of Baltimore, 32 U.S. 243 established a precedent on whether the United States Bill of Rights could be applied to state governments.John Barron co-owned a profitable wharf in the Baltimore harbor...

, 32 U.S. 243 (1833), that the Constitution's Bill of Rights
United States Bill of Rights
The Bill of Rights is the collective name for the first ten amendments to the United States Constitution. These limitations serve to protect the natural rights of liberty and property. They guarantee a number of personal freedoms, limit the government's power in judicial and other proceedings, and...

 applied only to the federal government
Federal government of the United States
The federal government of the United States is the national government of the constitutional republic of fifty states that is the United States of America. The federal government comprises three distinct branches of government: a legislative, an executive and a judiciary. These branches and...

, and that, consequently, the federal courts could not stop the enforcement of state laws that restricted the rights enumerated in the Bill of Rights. Gitlow v. New Yorks partial reversal of that precedent
Precedent
In common law legal systems, a precedent or authority is a principle or rule established in a legal case that a court or other judicial body may apply when deciding subsequent cases with similar issues or facts...

 began a trend toward nearly complete reversal; the Supreme Court now holds that almost every provision of the Bill of Rights applies to both the federal government and the states. The Court upheld the state law challenged in Gitlow v. New York, which made it a crime to advocate the duty, need, or appropriateness of overthrowing government by force or violence. The Court's ruling on the effects of the Fourteenth Amendment was incidental to the decision, but nevertheless established an extremely significant precedent.

As justification for its decision, the Supreme Court relied on the "due process
Due process
Due process is the legal code that the state must venerate all of the legal rights that are owed to a person under the principle. Due process balances the power of the state law of the land and thus protects individual persons from it...

 clause" of the Fourteenth Amendment. This provision, contained in Section One of the amendment, prohibits any state from depriving "any person of life, liberty, or property, without due process of law." Specifically, in its decision the Court stated that "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" (at 666). The Court would go on to use this logic of incorporation much more purposefully in other cases, such as De Jonge v. Oregon, 299 U.S. 353 (1937), Wolf v. Colorado
Wolf v. Colorado
Wolf v. Colorado, 338 U.S. 25 was a United States Supreme Court case in which the Court held 6-3 that the Fourth Amendment was applicable to the States through the Due Process Clause of the Fourteenth Amendment, however, the exclusionary rule was not. The Court specified no redressive measures...

, 338 U.S. 25 (1949), and Gideon v. Wainwright
Gideon v. Wainwright
Gideon v. Wainwright, , is a landmark case in United States Supreme Court history. In the case, the Supreme Court unanimously ruled that state courts are required under the Sixth Amendment of the Constitution to provide counsel in criminal cases for defendants who are unable to afford their own...

, 372 U.S. 335 (1963), to extend the reach of the Bill of Rights. Constitutional scholars refer to this process as the "incorporation doctrine," meaning that the Supreme Court incorporates specific rights into the due process clause of the Fourteenth Amendment.

Gitlow v. New York was also important for defining the scope of the First Amendment's protection of free speech following the period of the "Red Scare
First Red Scare
In American history, the First Red Scare of 1919–1920 was marked by a widespread fear of Bolshevism and anarchism. Concerns over the effects of radical political agitation in American society and alleged spread in the American labor movement fueled the paranoia that defined the period.The First Red...

," in which Communists and Socialist Party members were routinely convicted for violating the Espionage Act of 1917
Espionage Act of 1917
The Espionage Act of 1917 is a United States federal law passed on June 15, 1917, shortly after the U.S. entry into World War I. It has been amended numerous times over the years. It was originally found in Title 50 of the U.S. Code but is now found under Title 18, Crime...

 and Sedition Act of 1918
Sedition Act of 1918
The Sedition Act of 1918 was an Act of the United States Congress that extended the Espionage Act of 1917 to cover a broader range of offenses, notably speech and the expression of opinion that cast the government or the war effort in a negative light or interfered with the sale of government bonds...

. Gitlow, a Socialist, had been convicted of criminal anarchy after publishing a "Left Wing Manifesto." The Court upheld his conviction on the basis that the government may suppress or punish speech when it directly advocates the unlawful overthrowing of the government.

The opinions in this case are notable for their attempt to define more clearly the "clear and present danger
Clear and present danger
Clear and present danger was a term used by Justice Oliver Wendell Holmes, Jr. in the unanimous opinion for the case Schenck v. United States, concerning the ability of the government to regulate speech against the draft during World War I:...

" test that came out of Schenck v. United States
Schenck v. United States
Schenck v. United States, , was a United States Supreme Court decision that upheld the Espionage Act of 1917 and concluded that a defendant did not have a First Amendment right to express freedom of speech against the draft during World War I. Ultimately, the case established the "clear and present...

, 249 U.S. 47 (1919). The majority opinion written by Justice Edward Terry Sanford
Edward Terry Sanford
Edward Terry Sanford was an American jurist who served as an Associate Justice on the United States Supreme Court from 1923 until his death in 1930. Prior to his nomination to the high court, Sanford served as an Assistant Attorney General under President Theodore Roosevelt from 1905 to 1907, and...

, embracing the bad tendency
Bad tendency (legal)
In U.S. law, the bad tendency principle is a test which permits restriction of freedom of speech by government if it is believed that a form of speech has a sole tendency to incite or cause illegal activity. The principle, formulated in Patterson v. Colorado, was seemingly overturned with the...

 test that came out from Abrams v. United States
Abrams v. United States
Abrams v. United States, 250 U.S. 616 , was a 7-2 decision of the United States Supreme Court involving the 1918 Amendment to the Espionage Act of 1917, which made it a criminal offense to urge curtailment of production of the materials necessary to the war against Germany with intent to hinder the...

, 250 U.S. 616 (1919), stated that a "State may punish utterances endangering the foundations of government and threatening its overthrow by unlawful means" because such speech clearly "present[s] a sufficient danger to the public peace and to the security of the State." According to Sanford, "a single revolutionary spark may kindle a fire that, smoldering for a time, may burst into a sweeping and destructive conflagration." The case was also notable for being the American Civil Liberties Union
American Civil Liberties Union
The American Civil Liberties Union is a U.S. non-profit organization whose stated mission is "to defend and preserve the individual rights and liberties guaranteed to every person in this country by the Constitution and laws of the United States." It works through litigation, legislation, and...

's first major First Amendment
First Amendment to the United States Constitution
The First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering...

 case before the Supreme Court.

Dissent

In the dissenting opinion, Justice Holmes, the original author of the clear and present danger test, disagreed, arguing that Gitlow presented no present danger because only a small minority of people shared the views presented in the manifesto and because it directed an uprising at some "indefinite time in the future."

See also

  • List of United States Supreme Court cases, volume 268
  • The Smith Act
    Smith Act
    The Alien Registration Act or Smith Act of 1940 is a United States federal statute that set criminal penalties for advocating the overthrow of the U.S...

    , which prohibits advocacy of violent overthrow of federal and state governments

External links

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