Freedom Measured by Vulnerability

What happens when constitutional freedom and safety conflict?

Benjamin Gitlow was a member of the Socialist party and a business manager for The Revolutionary Age newspaper in 1925. He, alongside three others, were charged under New York’s Criminal Anarchy Law of 1902 for publishing “Left Wing Manifesto” in the newspaper he worked for. The writings called for establishing socialism through strikes and class action.

His trial followed the Red Scare of 1919 and 1920. This was a time when many leftists – anarchists, Bolshevik Revolution sympathizers, labor activists, communists, or socialists – were convicted under the Espionage and Sedition Acts. The country and the Court were caught up in an anti-German hysteria. Whenever society feels vulnerable to such emotion, freedom suffers. Former Chief Justice William Rehnquist stated,

“[SCOTUS] has often interpreted the law differently in wartime than in peacetime.”

I believe the manifesto plainly advocated and called to action the accomplishment of the Communist Revolution through riots and force. I agree with the following court decision to uphold conviction at this time when the threat of anarchy was so present. I think freedoms should be preserved, but I also believe in being responsible in exercising those freedoms.

Petitioner’s defense was that the writing was a historical analysis rather than advocacy of capitalism collapsing. He argued that the state’s criminal anarchy law violated his freedom of expression protected under the First Amendment.

By proposing appeal, Gitlow asked SCOTUS to reverse precedents under the Fourteenth Amendment’s due process clause that requires protection of liberty guaranteed by the Bill of Rights. The Court had to decide if it wanted to review a challenge to a state law on the means that it contradicted the federal constitution.

SCOTUS took the case to consider the question: Is the New York Criminal Anarchy Law that punishes advocacy to violently overthrow the government a violation of free speech under the First Amendment?

The New York court ruled that anyone who advocated the doctrine of violent overthrow violated the law. On a 7-2 decision for New York, the majority upheld conviction, ruling that free speech does not shield Gitlow from the state law. Based on the rationale of the “dangerous tendency test,” a state may forbid speech or publication if it might result in dangerous action even if the danger isn’t clear or present. The majority stated:

“A state in the exercise of its police power may punish those who abuse this freedom by utterances inimical to the public welfare, tending to corrupt public morals, incite to crime, or disturb the public peace.”

Gitlow lost his own appeal but struck a win by causing SCOTUS to rewrite rules concerning free expression at the state level, requiring states to respect freedom of speech, religion, and press. This is the first time the Court ruled that the Fourteenth Amendment’s due process clause holds state and federal governments at the same standard of regulating free speech, known as the incorporation doctrine. This precedent made two landmark cases possible: Near v. Minnesota and New York Times v. Sullivan.

Gitlow nearly reversed the precedent set by Baltimore v. Barron, which held that the Bill of Rights only applied to the federal government. This began a trend toward nearly every constitutional provision applying to both federal and state government.

Recently in McDonald v. City of Chicago, SCOTUS found the Second Amendment to be a fundamental right of all law-abiding citizens over 21 and that it is “fully applicable” in every state. Justice Oliver Holmes argued that the writings present no danger to violently overthrow the government.

Sources: Media Law by Overbeck; Wikipedia: “Gitlow v. New York” and “Schenk v. New York” Gitlow v. New York ((1925) 268 U.S. 652 found at oyez.org; All the Laws but One: Civil Liberties in Wartime by Former Chief Justice William Rehnquist

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