• Last updated on November 11, 2022

Although the Supreme Court upheld the conviction of a man for writing and distributing a socialist pamphlet, it determined that the First Amendment guarantee of freedom of speech is so central to the notion of due process under the Fourteenth Amendment that it must be required of the states under the incorporation doctrine.

Justice Edward T. SanfordSanford, Edward T.;Gitlow v. New York[Gitlow v. New York] wrote the opinion for the 7-2 majority upholding the conviction of a socialist, Benjamin Gitlow, for writing and distributing a pamphlet advocating strikes, socialism, and class action in “any form.” American Civil Liberties Union attorney Walter H. PollakPollak, Walter H. defended Gitlow, making a strong case for freedom of expression and succeeding in persuading a unanimous Court to apply the freedom of speech and press sections of the First Amendment to the states through the incorporation doctrine of the Fourteenth Amendment. He failed, however, to get his client’s conviction overturned because the majority thought that Gitlow’s pamphlet could be a “spark” that could create a real danger to society.Speech, freedom of;Gitlow v. New York[Gitlow v. New York]

Justice Edward T. Sanford, author of the landmark decision in Gitlow v. New York.

(Collection of the Supreme Court of the United States)

Justice Oliver Wendell Holmes dissented, arguing that Gitlow’s pamphlet was not likely to incite action and using his clear and present danger doctrine, which distinguished between speech and action. Justice Louis D. Brandeis joined Holmes’s dissent. Gitlow remained a theoretical issue until the Court struck down a state law for violating free speech rights in Stromberg v. California[case]Stromberg v. California[Stromberg v. California] (1931).

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Bad tendency test

Brandenburg v. Ohio

Clear and present danger test

Incorporation doctrine

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Stromberg v. California

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