In 1919 American Communist Party member Benjamin Gitlow was
arrested for distributing a "Left Wing Manifesto," a publication
inspired by the Russian Revolution. He was charged with violating
New York's Criminal Anarchy Law of 1902, which outlawed the
advocacy of any doctrine advocating to the violent overthrow of
government. Gitlow argued that the law violated his right to free
speech but was still convicted. He appealed and five years later
the Supreme Court upheld his sentence by a vote of 7-2.
Throughout the legal proceedings, much attention was devoted to
the "bad tendency" doctrine-the idea that speakers and writers were
responsible for the probable effects of their words-which the
Supreme Court explicitly endorsed in its decision. According to
Justice Edward T. Sanford, "A state may punish utterances
endangering the foundations of organized government and threatening
its overthrow by unlawful means."
More important was Justice Oliver Wendell Holmes' dissent, in
which he argued that the mere expression of ideas, separated from
action, could not be punished under the "clear and present danger"
doctrine. As Holmes put it, "Every idea is an incitement"--and the
expression of an idea, no matter how disagreeable, was protected by
the First Amendment. While the majority disagreed, it also raised
and endorsed the idea that the Bill of Rights could be violated by
neither the federal government nor individual states--an idea known
as "incorporation" that was addressed for the first time in this
case.
In recreating Gitlow, Marc Lendler opens up the world of
American radicalism and brings back into focus a number of key
figures in American law: defense attorney Clarence Darrow; New York
Court of Appeals justices Roscoe Pound and Benjamin Cardozo; Walter
Pollak of the fledgling ACLU; and dissenting justices Oliver
Wendell Holmes and Louis Brandeis. Lendler also traces the origins
of the incorporation doctrine and the ebb and flow of Gitlow as a
precedent through the end of the Cold War.
In a time when Islamic radicalism raises many of the same
questions as domestic Communism did, Lendler's cogent explication
of this landmark case helps students and Court-watchers alike
better understand "clear and present danger" tests, ongoing debates
over incitement, and the importance of the Holmes-Brandeis dissent
in our jurisprudence.
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