Richard Nisley


Gitlow v. New York – Landmark free speech case
History - American Released - Sep 07, 2019
Gitlow v. New York (1925) is noted for being the Supreme Court case that began the gradual process of incorporating the Bill of Rights' guarantees (in this case Free Speech) against state infringement. The case is the subject of an informative new book, GITLOW v. NEW YORK–EVERY IDEA AN INCITEMENT, by Marc Lendler.

The case involved some of the brightest legal minds of the day, including Oliver Wendell Holmes, Louis Brandeis, and Clarence Darrow. The defendant, Benjamin Gitlow, was born in Elizabethport, New Jersey, in 1891, to Russian immigrant parents, at a time when American Socialism was growing as a reaction to the rapid expansion of industry. At some point the Gitlow family moved from New Jersey to a crowded tenement building in the Lower East Side of Manhattan. This was the heart of the garment district, where working and living conditions were atrocious. The work was demanding, unregulated, and underpaid. The term "sweatshop" was coined at this time. These conditions, particularly among a population of immigrants who–like the Gitlows–had fought political battles in their former countries, created a left-leaning political culture, one that made Ben Gitlow's early and active entrance into socialists politics "a matter of course," as he put it in his memoirs. As a bright, dedicated young activist and (among immigrants) a rare native English speaker, Ben Gitlow quickly assumed a leadership role in the New York Socialist Party.

Opposition to World War I came to define the Party. There followed the Bolshevik revolution in Russia, which made it seem anything was possible; rallies followed with calls for revolution among America's exploited and impoverished work force. On the second anniversary of the Bolshevik revolution, American supporters held celebratory events. Gitlow was in the middle of a speech in upper Manhattan when about fifty police officers and detectives swooped in to make a mass arrest.

Thousands were held but only forty-five were charged, including Gitlow. A few days later he found himself in the New York Magistrate's Court charged as a criminal anarchist. A trial date was set and despite having Clarence Darrow as his defense attorney, he lost in Court and was sentenced to Sing Sing prison for a maximum of ten year's hard labor.

The ACLU put up the money for an appeal, an appeal made on the ground that New York State's Criminal Anarchy Law, under which Gitlow was convicted, violated his Constitutional right of free speech. The problem with this reasoning was that Gitlow was convicted in State Court, not Federal Court, and therefore the First Amendment did not apply. The First Amendment reads, "Congress shall make no law abridging the freedom of speech"; it says nothing about what state legislators may do.

The Fourteenth Amendment with its "due process" clause, ratified in 1866, was designed to get around this, with a passage that reads, "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States . . . without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

The amendment was created to protect former slaves in the Old South from unjust local or state laws, but exactly how to apply it to free speech cases had divided the Court in the past; but not this time. According to the author, "the extension of the Bill of Rights was the most important legacy of Gitlow v. New York." The Court had one more issue to consider before possibly overturning Gitlow's conviction, and that was the "bad tendency" doctrine, the idea that speakers and writers were responsible for the probable effects of their words. The Court majority ruled they were and upheld Gitlow's conviction.

Dissenting were Justices Holmes and Brandeis who argued that the mere expression of ideas, separate from action, could not be punished under the "clear and present" doctrine, a doctrine that Holmes himself had created as justification for upholding a conviction in prior free speech decision (also involving anarchists). Since then, Holmes had had a change of heart, and this time he argued, "Every idea is an incitement" – that the mere expression of an idea, no matter how disagreeable, is protected by the First Amendment.

Final note: despite losing his Supreme Court appeal, within a year Ben Gitlow was pardoned by New York governor Al Smith and released from prison. The legacy of Holmes' and Brandies's dissenting opinions is that in time they would become the High Court's majority opinion. That's the beauty of the United States Supreme Court–bad decisions are eventually overturned.

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