The Core of Gitlow's Argument: A Foundation for Incorporated Freedoms
In the landmark 1925 case of Gitlow v. That's why new York, Benjamin Gitlow’s central argument was not merely a simple objection to his arrest; it was a profound challenge to the very structure of the United States Constitution. He contended that the state of New York had violated his rights under the First Amendment by criminalizing the mere possession and distribution of political pamphlets. Practically speaking, gitlow’s defense, crafted by his lawyer Gilbert H. Highland, rested on a specific and then-radical legal theory: that the First Amendment's protections, particularly the guarantee of free speech, were not merely restrictions on the federal government but were also binding upon state governments through the Fourteenth Amendment. This argument, though unsuccessful in securing Gitlow’s acquittal, fundamentally altered the landscape of American constitutional law.
The Factual Backdrop: Anarchist Literature and the "Red Scare"
To understand Gitlow's argument, one must first understand the context. In 1919, amidst the First Red Scare—a period of intense anti-communist and anti-anarchist sentiment following the Russian Revolution—Benjamin Gitlow, a prominent socialist and co-founder of the Communist Party of the United States, was arrested. He was charged under New York's Criminal Anarchy Law, which made it a felony to advocate for the overthrow of the government by force or violence. Now, the specific evidence against him was the publication and distribution of a pamphlet titled The Left Wing Manifesto, which advocated for socialist revolution and the establishment of a proletarian government. Gitlow was convicted and sentenced to five to ten years in prison. His appeal to the Supreme Court was his last resort Most people skip this — try not to..
Easier said than done, but still worth knowing.
Gitlow's Legal Argument: The Incorporation Doctrine Takes Root
Gitlow’s primary argument before the Supreme Court was that the New York statute, as applied to his actions, was unconstitutional. The legal strategy was innovative for its time. The Bill of Rights—the first ten amendments—was historically understood to apply only to actions taken by the federal government. This principle was established in Barron v. Baltimore (1833). States were free to create their own bills of rights, and the federal Bill of Rights did not automatically apply to them.
Not obvious, but once you see it — you'll see it everywhere.
Gitlow’s lawyers argued that this interpretation was incorrect when it came to fundamental rights. So they focused on the Fourteenth Amendment, ratified in 1868, which states that no state shall "deprive any person of life, liberty, or property, without due process of law. " Gitlow’s team argued that the "liberty" protected by the Due Process Clause of the Fourteenth Amendment included the fundamental freedoms enumerated in the first eight amendments, including freedom of speech and press. In essence, they argued that the Fourteenth Amendment had "incorporated" the most essential rights from the Bill of Rights, making them binding on the states.
This is known as the incorporation doctrine. Gitlow's argument was that by punishing him for distributing political literature, New York had deprived him of his "liberty" without "due process of law," because the law was vague and overbroad, chilling speech that was protected at the federal level. He was not arguing that the state could not have any laws against sedition, but that the specific law used against him was an unconstitutional infringement on a fundamental right that the states were now bound to respect.
The Supreme Court's Decision: A Tactical Victory for Freedom
In a unanimous decision, the Supreme Court upheld Gitlow's conviction. Practically speaking, the Court, in an opinion written by Justice Edward Terry Sanford, agreed with New York that the state had the inherent power to protect itself from subversive and seditious activity. The Court reasoned that a state has a compelling interest in preserving its own existence and the safety of its citizens, and that this interest justified laws against speech that advocates for violent overthrow.
On the flip side, the Court's decision contained a monumental shift in constitutional interpretation. While affirming the conviction, the Court stated for the first time: "For present purposes we may and do assume that freedom of speech and of the press—which are protected by the First Amendment from abridgment 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."
This was the critical breakthrough. By explicitly assuming that the First Amendment's free speech clause applied to the states, the Court laid the groundwork for the full incorporation of the Bill of Rights. In the decades that followed, the Court would use this precedent to apply other amendments to the states, including the right to bear arms (McDonald v. Practically speaking, chicago), the right against self-incrimination (Miranda v. Arizona), and the right to counsel (Gideon v. Wainwright).
The Lasting Significance: From Gitlow's Loss to a Win for Liberty
Gitlow v. New York is a classic example of a legal defeat that became a strategic victory for civil liberties. Because of that, benjamin Gitlow himself remained in prison until 1921, and his specific legal battle was lost. That said, the precedent he set was transformative. His argument, though rejected in his own case, became the foundational principle for expanding individual rights against state infringement And that's really what it comes down to..
The case established that the Supreme Court would now serve as the ultimate arbiter in disputes between individuals and state governments regarding fundamental constitutional rights. It created a pathway for the Court to review state laws for consistency with the federal Bill of Rights. Before Gitlow, a state could restrict speech, press, assembly, or religion in ways that would have been unconstitutional if done by Congress, and the federal courts had no authority to intervene. After Gitlow, the door was open Which is the point..
All in all, in Gitlow v. New York, Benjamin Gitlow argued that his rights under the First Amendment were violated by the state of New York because the Fourteenth Amendment's Due Process Clause incorporated the protection of free speech, making it a shield against state action. While the Supreme Court did not agree with him in his specific instance, it accepted the core of his legal theory. The Court's decision to "assume" the incorporation of the First Amendment was a watershed moment, ensuring that the promise of liberty would be enforced not just against the federal government, but against all levels of government, thereby securing a more uniform protection of fundamental rights for all Americans.
