The Supreme Court: Gitlow v. New York

Gitlow v. New York

Let's review the Fourteenth Amendment:

"...No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law..."

Case Overview

This is a time machine.

1925

We're going back to 1833.

Does that mean the Bill of Rights now applies to states?

Didn't it already apply to states?

The state of New York charged Gitlow with violating the Criminal Anarchy Act,

Nope. Here's why:

Barron v. Baltimore

Chief Justice John Marshall ruled that the Bill of Rights applied only to the federal government.

What about the Fourteenth Amendment?

Background

Benjamin Gitlow: radical socialist and editor of the Left Wing Manifesto

Federalism and the Fourteenth Amendment

Kansas State Capitol

Gitlow v. New York began the judicial process of incorporation. One by one, the Supreme Court has been applying the Bill of Rights to the states, Today, almost all of the Bill of Rights have been incorporated.

civil liberties

Dreaming of the violent overthrow of the government...

Modern Implications of Selective Incorporation

Yates v. United States (1957):

invalidated the conviction of certain Communists under the Smith Act

Brandenburg v. Ohio (1967):

invalidated the conviction of a leader of the KKK under a similar law

Dissenting Opinion

Written by Associate Justice Oliver Wendell Holmes

Gitlow's message did NOT present a "clear and present danger" to the United States and thus was not in violation of the First Amendment.

"Every idea is an incitement."

We're going back to 1925 now.

Here's a question to ponder while we're in transit:

Does the Fourteenth Amendment force states to obey the First Amendment's guarantee of the freedom of speech and press, as Benjamin Gitlow claimed?

Benjamin Gitlow was also the business manager of this publication, the Voice of Labor, before he started editing the Revolutionary Age.

This steel man appears to be stomping on the state of Kansas.

Opinion of the Court (7-2)

Written by Associate Justice Edward T. Sanford

1. "...[F]reedom 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."

(The answer is yes.)

2. However, the First Amendment does not protect "utterances inimical to the public welfare, tending to corrupt public morals, incite to crime, or disturb the public peace..."

But Gitlow was still declared guilty of violating the Criminal Anarchy Act.

Ladies and gentlemen, please move on to the next case.

While this couple is visiting the Supreme Court, the state of Wisconsin can't search their house for illegally trafficked truffles from France without a warrant (Fourth Amendment).

If these college students are arrested under a state law but can't afford a lawyer because they're unemployed college students, their state of Massachusetts is required to provide them with an attorney (Sixth Amendment).