Gitlow v. New York (1925): The Case That Began Applying the Bill of Rights to States

Gitlow v. New York, 268 U.S. 652 (1925) stands as a landmark Supreme Court decision that **initiated the "incorporation doctrine"**—the process by which the Bill of Rights' protections were gradually applied to state governments through the Fourteenth Amendment's Due Process Clause.

Case Background

• Defendant: Benjamin Gitlow, Socialist Party member, publisher of *The Revolutionary Age*
• Charge: Criminal Anarchy Law (NY Penal Law §160) — advocating violent overthrow of government
• Publication: "Left Wing Manifesto" (1919) — called for mass strikes, revolutionary socialism
• Trial: Convicted 1920; sentenced 5-10 years; served 2+ years before Supreme Court review

Supreme Court Decision (7-2)

Majority (Sanford, J.): **Upheld conviction** — state may punish speech "inimical to public welfare, threatening public peace, attempting to subvert government." Applied "bad tendency" test (not "clear and present danger").

Crucial Dictum: **"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."**

Dissent (Holmes & Brandeis, JJ.): Applied *Schenck* "clear and present danger" test; manifesto posed no immediate threat; "every idea is an incitement."

Incorporation Doctrine Birth

Though Gitlow **lost**, the Court **accepted** that the First Amendment binds states via the Fourteenth Amendment. This **selective incorporation** framework—case-by-case application of Bill of Rights provisions to states—became the dominant methodology:

• 1925: *Gitlow* — Speech/press (1st Am.)
• 1931: *Near v. Minnesota* — Press freedom
• 1937: *De Jonge v. Oregon* — Assembly
• 1940: *Cantwell v. Connecticut* — Free exercise of religion
• 1947: *Everson v. Board of Education* — Establishment clause
• 1961: *Mapp v. Ohio* — Exclusionary rule (4th Am.)
• 1963: *Gideon v. Wainwright* — Counsel (6th Am.)
• 2010: *McDonald v. Chicago* — 2nd Amendment (latest major incorporation)

Enduring Significance

Gitlow transformed American federalism: **states could no longer freely restrict fundamental rights**. The "laboratory of democracy" gained a constitutional floor. While the specific "bad tendency" standard was later replaced by *Brandenburg v. Ohio* (1969) "imminent lawless action" test, the incorporation principle remains bedrock constitutional law.