June 8, 2012
The Bill of Rights applies not only to the Federal Government, but, because of the Fourteenth Amendment’s protection against “any State depriv[ing] any person of life, liberty, or property, without due process of law,” to state and local governments as well
Many of us take this protection for granted, but it wasn’t that long ago that individual states were free to ban certain kinds of speech that would otherwise be protected under the First Amendment.
Although the Fourteenth Amendment was adopted in 1868, it wasn’t for another 57 years that the Supreme Court began to interpret the Amendment to hold states to the same standard as the federal government.
The ruling that began this trend is Gitlow v. New York, decided on June 8, 1925.
While Gitlow was certainly a victory for First Amendment free speech rights in that it bound state governments to observe First Amendment freedom of speech and press protections, ironically, it was also a setback for speech rights.
This setback came from the Court’s upholding the constitutionality of a New York law that criminalized the advocacy of a government overthrow by force, violence, or “any unlawful means.”
The defendant, Benjamin Gitlow, was convicted under this law for distributing communist pamphlets that advocated accomplishing the “Communist Revolution” through an armed uprising of the proletariat.
Under the “clear and present danger” test established in 1919’s Schenck v. United States, the majority upheld Gitlow’s conviction under the law and, as mentioned already, the law itself.
The Court reasoned that Gitlow’s actions presented a clear and present danger, and that the statute was within its constitutional bounds in seeking to criminalize such conduct (the “clear and present danger” test was replaced with the more permissive Brandenburg test in 1969).
The upside to this rationale was the determination that such constitutional bounds even existed for the states.
Considering that the Fourteenth Amendment lacks any language explicitly binding state governments to respect the Bill of Rights, how did the Court do it?
As mentioned earlier, the Fourteenth Amendment prevents the deprivation of “liberty” by the states.
The Court found that this “liberty” includes the liberty of speech and of the press, and, thus, both are “protected by the due process clause of the Fourteenth Amendment from impairment by the States.”
Although the challenged law and the conviction under it endured, this recognition of First Amendment rights as a “liberty” under the Fourteenth Amendment paved the way for the recognition of additional rights as “liberties” (legal scholars refer to this legal doctrine as “incorporation”).
Today, virtually all rights guaranteed by the Constitution that apply against the Federal Government are also applicable against state and local governments.
Because the Bill of Rights isn’t explicitly recognized as being enforceable against the states, the Supreme Court in Gitlow had to engage in a bit of “judicial activism” to get there.
If Gitlow’s Supreme Court had been as hesitant to look beyond the plain text of the Constitution as some of today’s Supreme Court Justices seem to be, state and local governments may have very well gone unrestrained by the individual rights enshrined in the Constitution.
Luckily, 1925’s Supreme Court wasn’t so hesitant, and we are guaranteed that no government – national, state, or local – can trample on our constitutional rights unchecked.