The first amendment is something that Americans can often take for granted. Many countries like China do not have anything like our constitution in place and it is easy to see what happens when a 1st Amendment law or one similar is not enacted. However, with every rule or Amendment, there are exceptions. If a person is putting themselves or others lives at risk with the things they say, then larger authorities may need to get involved. There have been many Supreme Court cases that have covered First Amendment rights and issues. Many people in our current political climate and throughout history have criticized the president or other government authority. Now, the First Amendment allows people to criticize whoever they want as long as there is truth in what they say. Although, there is a thin line between criticizing a leader and asking for an uprising of people versus asking people to cause harm or hurt our leaders. This is where Benjamin Gitlow’s Supreme Court case comes into play. He finds himself in a First Amendment purgatory zone and it causes more trouble than it is worth.
Benjamin Gitlow was a journalist and member of the Socialist Party in the early 1900’s. At the time of the case, he was the newspaper business manager for A Revolutionary Age. In 1919, Gitlow released an article called the “Left Wing Manifesto”. Around this time, New York state had strict Criminal Anarchy laws. Even though his article did not outright say to cause bodily harm to the government, it gave lots of threat like statements and urged for extremely strong action to stop the government doing the things he disagreed with. In 1923, he was sentenced to 5-10 years at Sing-Sing prison for his role in Criminal Anarchy. He was released after a few years for good behavior and decided to pursue the case with the Supreme Court. In 1925, the Supreme Court ruled in the case of Gitlow Vs. New York that his conviction stands under the New York Anarchy law based on the “clear and present danger” clause. This clause was first presented during the 1919 Schenck Vs. New York case. Following the same idea as the Joker film, even though it did not say to go right out and harm somebody, a reader could take this article out of context or could fear that something dangerous might occur. As of present day, his verdict was dismissed but his case has been used as a landmark and set up many other cases in human history.
Looking at the case in modern terms, the verdict seems a bit harsh. Many people agree that much of his article was taken out of context, and if read correctly, the meaning behind it can be clearly seen. The constitution’s First Amendment clearly states that “Congress shall make no law…abridging the freedom of speech,” (Britannica). The issue of this case in particular was that even though free speech was designed to be protected, there is also a clause regarding clear and present danger that was used in the case. As Oliver Holmes states “The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent” (Parker 1). The idea behind the original introduction of this rule in the early 20th Century was to help prevent any danger to people in power. At this time, they used a tendency test to decide if speech was threatening in any way. This gave the government the opportunity to step in if speech got out of hand. However, this clause quickly became outdated as to how far the government should go. Parker also notes that “The Court crafted the test — and the bad tendency test, with which it is often conflated or contrasted — in cases involving seditious libels, that is, criticisms of the government, its officials, or its policies. It would be superseded by the imminent lawless action test in the late 1960s” (Parker 1). So, these tests have evolved and changed to help prevent further government overreach.
Most people would agree that nobody should have any of their rights in the Constitution infringed upon. However, the document is old and does not always account for all of the changes that have taken place since it was written. This is why Amendments were created in the first place. The 14th Amendment has a min focus on this and has a large part in the verdict on the Gitlow case. In a general sense the 14th amendments states that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States” (Chapman 2). So, a State cannot make a law that would go against something like free speech or free religion. However, in New York in the 1920’s there were those pesky Criminal Anarchy laws. This means that if your speech had criminal intent or viable threats, it could be processed in a court of law and a person could be State penalized for it. One specific element of the 14th Amendment that should be noted is the due process clause. In Gitlow’s case, it was the first time the 14th Amendment had been used to argue a case with the due process clause. This clause means that not only was he processed by the law before he got charged, but that Federal and State governments have to be held to the same standard when it comes to issues like free speech. This Supreme Court case was monumental in the fact that it held State and Federal governments to the same guidelines. This cases verdict was that Gitlow’s conviction was upheld and he was sent to prison to finish out his time. However, in the 1930’s the verdict was no longer regarded, and the case has since been used as an example of how far government overreach can go.
At the time of the verdict, the decision was split on whether people agreed. Many people were grateful though that the government was not going to allow anyone to cause harm or be a danger. However, looking at it in today’s terms, it can be seen how the case has set the precedent for many future 1st amendment cases. Looking at the time period, one of the statements made was “It offers itself for belief and if believed it is acted on unless some other belief outweighs it or some failure of energy stifles the movement at its birth.…” (Britannica). In looking at this case, this is the argument that was used to ensure that the conviction was upheld. Someone, anyone, could have read this article and believed everything to be true and take action with the things that the article was referencing. People needed to know that the government was not going to allow any kind of anarchy or uprising from the citizens. Also, since the verdict was dismissed, it is not a verdict that people are actively using in current cases.
Unfortunately, this mean that Benjamin Gitlow had to spend a total of five years in prison and lost his privileges as a journalist. Interestingly, after this verdict, free speech protections were expanded for citizens and in the 1960’s, the rules were adjusted close to the way we view it now. Gitlow did a great thing without knowing it, but he had to suffer consequences for the outcome to lead to where it is today. In his article Can I Say That, Peters notes that “A statement’s context is probably the most important factor in determining whether it is an opinion or a fact” (Peters 3). It was argued in court by Gitlow’s supporters that much of the story was his thoughts on how things should change. He was not stating facts of what he was going to do or forcing anybody to act in a particular way. He wanted to express how he was feeling and encourage people not to take government rule lying down. His case caused things to change for the better, but he ended up with the short end of the stick.
In many instances, the Supreme Court will overturn a conviction if the ruling no longer stands or another verdict takes its place. In this situation, the verdict was dismissed but there was not an actual date of the case being officially overturned. If it were overturned right now, all of the work that it has done might go away with it. It set an extreme precedent for many other cases that came after it, so it can be argued that the guilty verdict did a lot for the future, whether that was fair or not. People received many more free speech protections after the verdict, and it showed the country that both the Federal and State governments had to play by the same rules. It is important that people know how this case turned out and understand the issues that can occur if we do not protect people’s free speech. The current argument gets hairy when it comes to situations like Edward Snowden and other historical whistleblowers who are speaking the truth. Many people wonder if they have the same rights to the First Amendment protections as others. In Gitlow’s case, he was speaking to the idea of having to be actively involved in your government and making sure that your rights are kept, not whistleblowing or leaking any private information. If right now the supreme court made a decision to overturn it, aside from giving Gitlow rest in the grave, there is no other benefit to society to make this change. Although the verdict will never be regarded again, it is still used as a prime example of when government overreach goes too far.
Gitlow’s case sparked an insane amount of change in the country. Today, there is so much more clarity and protections on our freedom of speech laws. The First Amendment is something we never want to lose and Gitlow’s case is a prime example of why people need to continue the fight to protect it. While making an active threat is still illegal and should be, today citizens have the freedom to continue to criticize their governments and desire active change.
References:
Peters, Jonathan Can I Say That? Columbian Journalistic Review, Sept. 2015. Web.
Editors of Encyclopedia Britannica Gitlow Vs. New York Law Review. 2009. Web.
Parker, Richard Clear and Present Danger Test. The First Amendment Review. Web.
Chapman, Nathan The Fourteenth Amendment Due Process Clause. Constitutioncenter.org Web.
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