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The Issue: Are states restricted from passing laws which confict with the
Bill
of Rights in the U.S. Constitutioni
Tbe Players:
Benjamin Gitlow-Convicted by the state of New York for violating the
statet law against promoting anarchy.Argued that this law violated his right
to free speech guaranteed by the U.S. Constitution.
Tlte Ruling: The Court ruled that language in the Fourteenth Amendment
required the states to abide by the federul guarantee of the freedom of
speech.
ruling reversed the precedent set by Barron v. Bqltimore
(L833), which held that states were not bound by the federal Bill of Rights.
It established the incorytoration doctrine, which would be used for decades to
slowly tie the states to many of the guarantees offered by the Bill of Rights.
Significance: The
Background
Gitlow u. New York was selected for this book because it is the rcal beginning of the incorltoration doctrine in Supreme Court rulings. Prior to Gitlow,
the Bill of fughts was considered to restrain only the national government
and not the states-a doctrine that was upheld inBarron u. Baltimore (1833).
In Gitlow, the Supreme Court reversed Barron u. Baltimore and in so doing
5t
tied the stares to the Bill of fughts with rope provided by the Fourteenth
Amendment, The Fourteenth Amendment! due process clause states that
"No ' '. state (shall) deprive any person of life,liber\, or propefiy,without
due process of lawi' rn Gitlow,the Court reasoned that the fr""do-'of speech
is a basic liberry and, as such, is included in the scope of the Fourteenth
Amendment. (For examplg prior to Gitlow, the U.s. congress could not
pas_s a law limiting the freedom of speech, but a state legislarure
-ight, After
Gitlow, neither the federal nor state governments could p"., l"*, limiting
free speech.)
The significance of the incorporation doctrine is that it has allowed the
Supreme court, over the years, to offer guarantees to individu alliberty that
-ight not have been protected by the srares. Also important, the Supreme
Court has never incorporated the entire Bill of fughts, bur has instead elected
to invoke this doctrine piecemeal over many years.
The incorporation doctrine is a concepr that often is difficult ro grasp
-for some
srudents- However, it is crucial in understanding the Court's role in
protecting individual liberties in the Z}th centary.
SUPREME COURT DECISIONS
SncrroN r
Trrn PusrrsHER
The tall, slender man looked up and down the street before descending the stairs to the basement apafiment below. He knocked cwice quietly,
opened the door and slipped inside. The room was dark, as usual, and the
air was heevy with cigarette smoke and the smell
of binding glue. The man stood for a moment
just inside the door waiting for his eyes to
adjust before moving. He had to walk
carefally to avoid the stacks of boxes
and books that covered the small area.
When he got to the back office he found
f
the door locked so he knocked again.
Finally the door flew open, revealingan
aging man aLready shuffing back to his
desk, his white hair aglow in the dimly
lit room.
"This is going to get you arrestedl'
the white-haired man said, holding
up the inch-thick handwritten manuscript. He offered no handshake and
gave no introduction.
"Dont give me thati'the slender man said,"it's good and you know itl'
"I didnt say it wasnt good-I said it would get you arrestedl'The old
man lit another cigarette and squinted through the smoke.
"Ihave my rightsi'the slender man countered.
"You have the right to suggest the violent overthrow of the governmentl"
he coughed.
"I have the right to freedom of speech. It's in a Little thing called the
Constitutionl'
"You think the Constitution is going to protect an anarchist?" the whitehaired man laughed.
"The Constitution is written to protect unpopular speech, not popular
speech. That was one thing they got righd'The slender man was beginning to
sound preachy.
'Well, you seem to know a whole lot about the governmertthat you are
wanting to overthrow, and I guess you should. Bug I publish a lot of this
stu6 and maybe you ought to know more about a little thing called state law.
You see, the State of Massachusetts frowns on this kind of thingi'The old
man held up the smudged pages againto make his point.
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Suytreme
Court Decisions
@
Prufrock Press . This page may be photocopied or reproduced with permission for classroom
use
53
"What do you mean
"I
the Stqte of Massacbusetts?" the slender man asked.
it doesnt maffer what the U.S. Constitution saysi'the old man
'The
explained.
U.S. Constitution says that'Congress shall make no law
abridging the freedom of speech
doesnt say a thing about the State of
mean,
-it
Massachusetts;"
"That's not right!" the slender man cried, his face reddening.
"Dont worry,I'll sdll print it for you, but your name's on it and you'll be
the one going to jaili'
"Dont worry about me)' the slender man said, "you just print my book
and I'll worry about the rest. There is no way ihey can arrest me for it,Ihave
my rights guaranteed by the Constitution.I'11 fight it!"
The slender man took a tightly wrapped roll of money out of his pocket
and handed it to the white-haired man. The white-haired man took the
money and said,"Dont say I didnt warn youi'
Discussion Questions
Do you think a state can pass a law that violates a right gaaranteed by the
U,S. Constitutioni Explain your answer.
1".
2.
Which man from the vignette above do you think is correct in his beliefsi
Explain your answer.
3.
Do you think the slender man should be arrestedi Why or why noti
4.Do you think that a book
suggesting the overthrow of the government is
protected by the First Amendmenti Why or why notl
54
Supreme
Court Decisions
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Prufrock Press . This page may be photocopied or reproduced with permission for classroom use
SscrroN 2: Trrs Actuar Casr
Gtrl-ow v. Nrw Yonx (rgrE)
Benjamin Gitlow was a Socialist who wrote the"Left Wing Manifestoj'
in which he advocated the violent overthrow of the U.S. government, He
was convicted of violating New Yorkt Criminal Anarchy law. He appealed
the decision by making two different argumentsr First, he argued that his
writing did not constitute a"clear and present danger" to public safety, the
threshold having been determined in I9l9by the Supreme Court in Scbenck
y. U.S, Second, he argued that his arrest violated the Fourteenth Amendment
(Gitlow v. New York [L925)).
Trrs Rur,rNc
Gitlow's lawyers lost on the first point in which they argued that his
speech should have been protected by the First Amendment. The Supreme
Court ruled that the nature of Gitlow's publication was so potentially destructive that it posed an imminent threat to the country, even though his writing
was nonspecific and mainly rhetorical. Thus, it upheld his conviction as constitutional. More significant, however, was the position the Court took on the
meaning of the Fourteenth Amendment.
In the Gitlow ruling the Court stated that the Fourteenth Amendment's
due process clause ('hor shall any State deprive any person of life,liberq,,
or property, without due process of law, . i') bound the individual states to
adhere to portions of the First Amendment of the Constitution of the United
States, This ruling overturned the previous doctrine established by Barron u.
Bqkimore a cenrury before, which ruled that states were not bound by the
U.S. Constitution.
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Court Decisions O Prufrock Press . This ptge may be photocopied or reproduced with permission for classroom
use
55
Trrs ArrsnMATH
With Gitlow
u. New Yorb, the aftermath is arguably far more important
than the case itself, The notion that states must provide the protections
guaranteed by the U.S. Constitution forever changed the balance of power
between the states and the federal government. The concept, known as the
incorytoration doctrine, started with Gitlow and tied only the freedoms of
speech and press to the states. However, once that precedent was set, the
court slowly began incorporating most of the other freedoms guaranteed by
the Bill of fughts, as well. Civil liberties became more and more protected
from states, as well as the federul.government, throughout the 20th century.
Accordingly, the power of the Supreme Court to rule in cases involving civil
liberties and state laws grew tremendously, as well.
MarrNc Ir Cunnshlr
Do you think that a state could pass a law banning handgunsl (The second
amendment to the U.S. constitution guafantees the right to keep and bear
arms.)
I
56
Supreme
Court Decisions
@
Prufrock Press . This page may be photocopied or reproduced with permission for classroom use