Gitlow v. New York

268 U.S. 652 (1925)

Majority Opinion by Justice Sanford

As with Abrams, the majority opinion in Gitlow exerts far less influence on contemporary First Amendment jurisprudence than does the dissent. However, Justice Sanford’s opinion in Abrams is notable as the first ever majority statement of “incorporation” of the First Amendment under the Due Process Clause of the Fourteenth Amendment (“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 14^th Amendment from impairment by the states.”). This doctrinal innovation occurred because Abrams concerned the constitutionality of New York State’s law against “criminal anarchy” (usually referred to as “criminal syndicalism”) rather than the federal Espionage Act.

Predictably, Sanford’s majority opinion upheld a criminal syndicalism conviction. Relying on prior caselaw, Sanford explicitly endorsed a “bad tendency” test: “In such cases it has been held that the general provisions of the statute may be constitutionally applied to the specific utterance of the defendant if its natural tendency and probably effect was to bring about the substantive evils which the legislative body might prevent… It was sufficient if such acts were advocated in general terms; and it was not essential that their immediate execution should have been advocated.”

USEFUL LINKS

CourtListener (full opinion text)

Oyez (summary)

Wikipedia (summary + links)