In 1925 the United States Supreme Court released a ...



The Aftermath of Gitlow v. New York

Kaydee Mueller

Political Science 225: Constitutional Law

Professor Mott

December 10, 2007

I affirm that I have upheld the highest principles of honesty and integrity in my academic work and have not witnessed a violation of the Honor Code.

Kaydee Mueller

In 1925 the United States Supreme Court released a seemingly insignificant decision to uphold the conviction of Benjamin Gitlow by the Supreme Court of New York. In the years following World War One the fear of communist and socialist dominated the thoughts of many Americans, prompting the government to try to curb leftist action. Congress had passed both the Espionage Act of 1917 and the Sedition Act of 1919, and effectively limited all anti-war statements and protests. Gitlow, a popular figure among Socialist, Communist and especially union members, had been accused and convicted of criminal anarchy after he released the “Left Wing Manifesto” in a newspaper that he co-managed with another member of the Left Wing Faction of the Socialist Party. The case was especially significant for two reasons, neither of which were actually realized when the case was argued. The first, the establishment of the bad tendency test in place of the clear and present danger test effected how judges would view the exercise of freedom of speech and press. The second result of the Gitlow decision was the fact that the Court took its first step towards incorporating the Bill of Rights into the due process clause of the fourteenth amendment. Incorporation is defined as the consolidation of certain amendments of the Bill of Rights under the umbrella of the due process clause guaranteed by the fourteenth amendment. Both, the bad tendency test and incorporation would create significant precedents that would influence many of the future rulings of the Supreme Court in areas such as the right to privacy, freedom of speech, religion, and expression. The case of Benjamin Gitlow versus New York truly altered the path of the Supreme Court and led to significant evaluation of the right to free speech, and its application under state governments.

Benjamin Gitlow was truly an interesting character. He was the son of two Russian immigrants who immigrated to the United States at the end of the nineteenth century. He became active in many socialist organizations at just eighteen and quickly rose to leadership positions in the early years of the twentieth century. He was elected to the New York State Assembly and even ran for Vice President of the United States on the Communist Ticket in 1924. In 1919, Gitlow was named manager of The Revolutionary Age, a leftist publication. Later that year, Gitlow’s newspaper published the Left Wing Manifesto and he was arrested under the New York State Criminal Anarchy Act. Released after serving three years, Gitlow then visited the Soviet Union multiple times, but was eventually forced to leave the party after criticizing Stalin’s policies. Gitlow would eventually become a popular public speaker, lecturing and writing as an anti-communist intellectual.[1]

To understand the first result of Gitlow, the bad tendency test, one must understand the thinking of the Supreme Court in the 1920’s. The United States had just survived the First World War, and the fear of fascism, communism and socialism was rampant throughout the American population. The United States was no longer isolated by the vast oceans with the recent invention of flight, and the spread of ideas seemed to occur at an almost dangerous pace. The Court even assumed, on the side of New York, that police power could be used against any group protesting government action. Because the Federal and State governments had developed legislation that limited free speech, the Court was forced to develop means of determining the constitutionality of these different laws. In the early years of the 20th century the conservative Taft Court designed two tests to determine the difference between a person simply exercising his right of free speech and posing a threat to the Government. The first, The Clear and Present Danger Test, was developed as part of the decision to uphold the conviction of Charles Schenck, in Schenck v. The United States (1919).[2] In this case, Charles Schenck had distributed thousands of pamphlets to draft-aged men, urging them to avoid the draft. He was then convicted of trying to interfere with the war effort by disturbing the draft under the Espionage Act and sentences to six months in prison. Justice Holmes wrote the 9-0 decision upholding the conviction and it was in this decision that he released the parameters for his new test. When Oliver Wendell Holmes designed this test, his main goal was to protect freedom of speech by ensuring that in order to lose the right one must pose a real and immediate danger to the government. He stated “The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that the United States Congress has a right to prevent. It is a question of proximity and degree.”[3] Holmes quickly emphasizes his most important point—the question is not only about the words used, the question is about when, how and why the words were used, and if those words pose a danger that is likely to occur immediately. The test was a two prong test, emphasizing both the action and the possible effects. One must realize, though, that Holmes did not really intend for this rule to become the constitutionality test that it did. Holmes simply urged the use of the clear and present danger test as “a rule of evidence”.[4] He intended the rule to provide the means to determine whether enough evidence existed to suggest that the words used would have incited rebellions, not as a test of the constitutionality of the new legislation. But, just a few months later, the words used in his decision in Schenck would be convoluted and turned against him in another case.

The clear and present danger standard was too strict according to most of the justices, and from those sentiments came the Bad Tendency Test. When, in 1919, the court released its 7-2 decision in favor of convicting Jacob Abrams of violating the Espionage Act on the basis that his words posed a threat to the government, bad tendency become the test of choice for the Supreme Court Justices. Unlike Clear and Present Danger, the Bad Tendency test only evaluated whether the accused could possibly have incited dangerous activity towards the government through public speeches or publications with no regard to whether the dangerous event might actually occur. This test was simply a measure of the actual words, the measure of the possible evil. The court did not evaluate whether the danger was practical or could actually happen in the near future. Instead the test simply analyzed whether the words could be interpreted as dangerous or as inciting, taking no account of the speaker’s intentions or goals. The bad tendency test was much more conservative and significantly limited the rights of speech of the American people. As Holmes explains in a beautifully crafted dissent “But to make the conduct criminal that statute requires that is should be ‘with intent by such curtailment to cripple or hinder the United States n the prosecution of the war.’ It seems to me that no such intent is proved.”[5] Here emerges the very clear difference between the two tests, does the ability to actually incite a reaction that will hurt the government exist. As Holmes suggests, if that ability does not exist, then the requirements have not been met, and the government can not restrict citizen’s freedom of speech.

By 1925, when Gitlow was being reviewed by the Supreme Court, the bad tendency test had emerged as the popular test, but its actual effectiveness was still under debate. In Gitlow, the Supreme Court employed the test by saying “The question whether the specific utterance in question was likely to bring about the substantive evil aimed at by the statute is not open for consideration.”[6] While it can be argued that Gitlow’s Left Wing Manifesto encouraged it’s readers to strike against the government, as Holmes suggested, the publication did not pose an immediate danger to the government. Basically, the Court decided to ignore the Clear and Present Danger test in the Gitlow decision, and opted instead to restrict his right to free speech because what he said was a “single revolutionary spark that may kindle a fire that, smoldering for a time, may burst into a sweeping and destructive conflagration.”[7] Judges had become so worried about anti-war and anti-government sentiments that they felt the need to provide protection to the government from the people rather than protecting the people. As the fear of communism continued to spread, this decision created a precedent which enabled future Supreme Court Justices to employ the bad tendency test instead of clear and present danger. In 1951, the court would again employ the bad tendency test in the case of Dennis v. the United States (1951), and in a 5-4 decision would convict 11 communist members of attempting to overthrow the government.[8] In typical bad tendency fashion, the convicted were not actually urging members to begin the overthrow of the United State government in the near future; instead they were expressing their belief that in order to be a more successful and equal society, the government must be overthrown at some point. There were no distinct plans or orders given, the speech was an intellectual conversation that was misconstrued by a government obsessed with discovering communist. This would be the last real use of the bad tendency test, because soon after, the tensions within the US government would relax, and the Court would shift back towards a more liberal track as the country entered the 1960’s.

The second result of the Gitlow case, incorporation, is much more obscurely connected to the decision. The decision handed down by the Supreme Court in Barrow v. Baltimore (1883) held that “the guarantees of the Bill of Rights apply only to the federal government” because states are not included in the constitution.[9] Although the Bill of Rights was originally constructed as a check on the Federal government, the Supreme Court has since decided to incorporate the first eight amendments into the due process clause of the fourteenth amendment, effectively protecting these rights from infringement by state governments. When Justice Stanford wrote the Gitlow decision, he quickly and almost absent-mindedly highlights that the court, in order to make a decision “assumed that freedom of speech and of the press are among the person rights and liberties protected by the due process clause of the fourteenth amendment from impairment by the state.”[10] The fourteenth amendment “forbids the states to deprive persons of life, liberty or property without due process of law, but leaves to posterity the determination of just what rights the amendment protects.”[11] Because the court accepted the case on the grounds that a state law could be in violation of the 14th amendments guarantee to liberty, which in this case free speech was considered a part of liberty; it seems that the Supreme Court was assuming that certain federal right also applied to States. But, by only citing the freedom of speech and press, the court effectively avoided the question of incorporation because it did not cite the entire first amendment—“On closer examination it appears that Gitlow did not effect incorporations of the protection of speech and press, it was only the beginning of the process.”[12] Although Gitlow did not specifically address the incorporation of the Bill of Rights, the case was cited in Stromberg v. California as the first time that free speech was clearly protected by the 14th amendment.[13] When the fourteenth amendment was first written, being denied liberty was to only apply to “when physically restrained or denied the minimum procedural safeguards essential to a fair trial”.[14] Once the court declared that freedom of speech was protected by the fourteenth amendment, “no distinction was made between state and federal regulations”.[15] Gitlow was the first suggestion that the Court would recognize parts of the Bill of Rights as needing protection from state infringement and incorporation would lead to many landmark cases.

From Sanford’s assumption of the protection of free speech came the ultimate incorporation of certain amendments, and eventually, this decision would enable justices to incorporate many other rights under the protection of the fourteenth amendment. Now, eight of the first ten amendments have been incorporated into the fourteenth. For example, in Gideon v. Wainwright (1963) the right to council was extended to all criminal cases.[16] Mapp v, Ohio (1961) declared that the state, like the federal government could not participate in unreasonable search and seizure. The court was then forced to determine a clear test that would enable Justices to decide what amendments should and should not be incorporated. As a result, a test was developed to determine what amendments should and should not be protected. The Honor Roll Theory, described by Justice Cardozo has enabled Supreme Court to effectively determine when state laws infringe on or violate the rights protected by the fourteenth Amendment. The Honor Roll Theory was developed by Justice Benjamin Cardozo and separated amendments into two categories—formal and fundamental. Amendments that have been incorporated into the definition of liberty under the fourteenth amendment are viewed as fundamental. In Palko v. Connecticut (1937)[17] Cardozo wrote the decision for the majority in which he suggests that certain rights, such as the right to privacy or a fair trial are “implicit in the ‘concept of ordered liberty’ and as such enforceable against the states”.[18] These fundamental rights are “the very essence of a scheme of ordered liberty”.[19] Cardozo went on to emphasize that the Court had not outlined a general rule protecting all amendments from violation by the states and that some rights remained formal. These formal rights were not seen by the court as fundamental to the success of the United States government or to the administration of justice, they were simply nice to have, and they were therefore not incorporated into the due process of the fourteenth amendment. The Honor Roll Theory was eventually redesigned to protect individual rights in a way that reflected the ideas of the writers of the Constitution. As the fear of communism began to disappear, the focus of the Supreme Court returned to protecting citizens from an intrusive government. “It must be noted that there is no small irony in the fact that it was the very conservative majority of the “Taft Court” which, in its desire to give constitutional approval to the curving of radical dissent, created the basis for incorporation and the later “explosion” of civil-liberties law while the only expressions of doubt came from the reputed liberals Brandeis and Holmes.”[20] It is funny to realize that the justices who were so determined to protect the government from subversive action were actually incredibly important to the future development and change within the United States.

It must be understood that Gitlow did not actually introduce or even mention the issue of incorporation, but it inadvertently created a precedent that would lead to the eventual incorporation of many of the amendments in the Bill of Rights. Although Gitlow itself was not a landmark case, the effects of the precedent set by Stanford were felt throughout the Red Scare, Civil Rights and Vietnam. Because of the Espionage and Sedition act passed in the late 1910’s, the freedom of speech was effectively curtailed, but when African Americans marched for equal rights, or students protested Vietnam, the Supreme Court did not make the mistake of trying to again restrict these all important rights and did not use the bad tendency test. The effects of incorporation are felt even right now, as the government deals with cases of right to privacy in regards to subjects such as contraception and sexual act. In Roe v. Wade (1973) the court guaranteed the right to abortion under the right to privacy and ensured that it was protected from the state under the fourteenth amendment.[21] Sodomy has been illegal for hundreds of years, but when the police arrested John Lawrence he appealed to the Supreme Court on his right to privacy within his own home in the case Lawrence v. Texas (2003)[22]. His case was overturned under his protection from state interference with his fundamental right to privacy. Incorporation has led to a much stricter evaluation of state laws and the tests formed now guarantee people the civil liberties detailed in the Bill of Rights. It can be said that cases like Gitlow shares certain characteristics with the actions of the Bush Administrations, which in order to protect Americans from terrorist, is now more than willing to restrict our rights. It remains to be seen if the Supreme Court will decide that our right to privacy is more important than the possible threat of a terrorist attack?

Bibliography

Abrams v. United States, 250 U.S. 616 (1919)

Dennis v. United States, 341 U.S. 670 (1951)

Gideon v. Wainwright, 372 U.S. 335 (1963)

Gitlow v People of New York, 268 U.S. 652 (1925)

Palko v. Connecticut 302 U.S. 319 (1937)

Roe v. Wade, 410 U.S. 113 (1973)

Schenck v. United States, 249 U.S. 47 (1918)

Gillman, Howard. “Preferred Freedoms: The Progressive Expansion of State Power and the Rise of Modern Civil Liberties Jurisprudence”, Political Research Quarterly, Vol. 47, No. 3, (Sept., 1994) 623-653.

Bartholomew, Paul C., “The Gitlow Doctrine Down to Date”, American Bar Association Journal, Vol. 50 (Feb., 1964), 139-141.

Bartholomew, Paul C., “The Gitlow Doctrine Down to Date, II”, American Bar Association Journal, Vol. 54 (Aug., 1969) 785-787.

Heberle, Klaus H. “From Gitlow to Near: Judicial “Amendment” by Absent-Minded Incrementalism”, The Journal of Politics, Vol. 34, No. 2, (May, 1972). 458-483.

Strong, Frank R. “Fifty Years of ‘Clear and Present Danger’: From Schenck to Brandenburg—and Beyond” The Supreme Court Review, Vol. 1969. (1969) 41-80.

“Limiting State Action by the Fourteenth Amendment: Consequences of Abandoning the Theory of First Amendment Incorporation” Harvard Law Review, Vol. 67, No. 6. (Apr., 1954) 1016-1030.

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[1] BENJAMIN GITLOW PAPERS, 1910-1968 UNCC MANUSCRIPT COLLECTION 108. , (Accessed on December 10, 2007).

[2] 249 U.S. 47 (1919).

[3] 249 U.S. 47 (1919)

[4] Frank R. Strong, Fifty Years of the “Clear and Present Danger Test” From Schenck to Brandenburg—and Beyond. The Supreme Court Review. Vol. 1969 (1969) 44.

[5] 250 U.S. 616 (1919).

[6] 268 U.S. 652. (1926)

[7] 268 U.S. 652. (1926)

[8] 341 U.S. 494, (1951)

[9] Paul C. Bartholomew, The Gitlow Doctrine Down to Date, “American Bar Association Journal”, Vol. 50 (Feb 1964), 139.

[10]268 U.S. 652. (1926)

[11]Paul C. Bartholomew, The Gitlow Doctrine Down to Date, II , “American Bar Association Journal”, Vol. 54 (Aug. 1968) 785.

[12]Klaus H. Heberle From Gitlow to Near Judicial Amendment’ by Absent-Minded Incrementalism, “The Journal of Politics”, Vol. 34, No. 2, (May 1972) 459.

[13] Heberle, 459.

[14] Limiting State Action by the Fourteenth Amendment: Consequences of Abandoning the Theory of First Amendment Incorporation, “Harvard Law Review”, Col. 67, No. 6 (Apr., 1954) 1016.

[15] Limiting State Action, 1017.

[16] Bartholomew, 140.

[17] 302 U.S. 319, (1937)

[18] Bartholomew, 141.

[19] Howard Gillman, Preffered Freedoms: The Preforessive Expansion of State Power and the Rise of Modern Civil Liberties Jurisprudence, “Political Research Quarterly”, Vol. 47, No. 3 (Sept., 1994) 624.

[20] Heberle, 471.

[21] 410 U.S. 113 (1973)

[22] 539 U.S. 558 ( 2003).

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