Question

how do the Supreme Court holdings in Gitlow and Palko establish the need for incorporation?

Answer 1

Gitlow v. New York, case in which the U.S. Supreme Court ruled on June 8, 1925, that the U.S. Constitution’s First Amendment protection of free speech, which states that the federal “Congress shall make no law…abridging the freedom of speech,” applied also to state governments. The decision was the first in which the Supreme Court held that the Fourteenth Amendment’s due process clause required state and federal governments to be held to the same standards in regulating speech.

The case arose in November 1919 when Benjamin Gitlow, who had served as a local assemblyman, and an associate, Alan Larkin, were arrested by New York City police officers for criminal anarchy, an offense under New York state law. Gitlow and Larkin were both Communist Party members and publishers of The Revolutionary Age, a radical newspaper in which they printed “The Left Wing Manifesto” (modeled on The Communist Manifesto by Karl Marx and Friedrich Engels), which advocated the violent overthrow of the U.S. government. Although Gitlow argued at trial that no violent action was precipitated by the article, he was convicted, and the conviction was subsequently upheld by the state appellate court.

Oral arguments before the Supreme Court took place in April and November 1923, and the Supreme Court issued its ruling, written by Justice Edward T. Sanford, in June 1925. The court upheld Gitlow’s conviction, but perhaps ironically the ruling expanded free speech protections for individuals, since the court held that the First Amendment was applicable to state governments through the due processclause of the Fourteenth Amendment. The majority opinion stipulated that the court “assume[s] 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.” In ruling that the conviction was constitutional, however, the court rejected the “clear and present danger” test established in Schenck v. U.S. (1919) and instead used the “bad (or dangerous) tendency” test. The New York state law was constitutional because the state “cannot reasonably be required to defer the adoption of measures for its own peace and safety until the revolutionary utterances lead to actual disturbances of the public peace or imminent and immediate danger of its own destruction; but it may, in the exercise of its judgment, suppress the threatened danger in its incipiency.” In an eloquent dissenting opinion, Justices Oliver Wendell Holmes, Jr., and Louis Brandeis held to the clear and present danger test, arguing that

The ruling, which enabled prohibitions on speech that simply advocated potential violence, was eventually dismissed by the Supreme Court in the 1930s and later as the court became more restrictive in the types of speech that government could permissibly suppress.

The doctrine of incorporation has been traced back to either Chicago, Burlington and Quincy Railroad v. City of Chicago (1897) in which the Supreme Court appeared to require some form of just compensation for property appropriated by state or local authorities (although there was a state statute on the books that provided the same guarantee) or, more commonly, to Gitlow v. New York (1925), in which the Court expressly held that States were bound to protect freedom of speech. Since that time, the Court has steadily incorporated most of the significant provisions of the Bill of Rights.Provisions that the Supreme Court either has refused to incorporate, or whose possible incorporation has not yet been addressed include the Fifth Amendment right to an indictment by a grand jury, and the Seventh Amendment right to a jury trial in civil lawsuits.

Incorporation applies both procedurally and substantively to the guarantees of the states. Thus, procedurally, only a jury can convict a defendant of a serious crime, since the Sixth Amendment jury-trial right has been incorporated against the states; substantively, for example, states must recognize the First Amendment prohibition against a state-established religion, regardless of whether state laws and constitutions offer such a prohibition. The Supreme Court has declined, however, to apply new procedural constitutional rights retroactively against the states in criminal cases (Teague v. Lane, 489 U.S. 288 (1989)) with limited exceptions, and it has waived constitutional requirements if the states can prove that a constitutional violation was "harmless beyond a reasonable doubt.