“What Did Gitlow Do?,” by James Stern

The article is here; the Introduction:

Dissenting in Gitlow v. New York, Justice Oliver Wendell Holmes remarked that while the “general principle of free speech” is part of the liberty guaranteed by the Fourteenth Amendment’s Due Process Clause, “perhaps it may be accepted with a somewhat larger latitude of interpretation than is allowed to Congress by the sweeping language that governs or ought to govern the laws of the United States.” The suggestion that the Constitution would constrain states less than the federal government in the area of free speech would have been consistent with an understanding of due process as an outer backstop, protecting against action so far afield that it “passes the bounds of reason and assumes the character of a merely arbitrary fiat.” Such an understanding might have helped reconcile the existence of federal free speech limitations on states with the then-widely held view that the Fourteenth Amendment did not subject the states to the first eight amendments to the Constitution as such.

The Supreme Court never adopted Holmes’s suggestion. But to say only that would be misleading: Far from flirting with a more deferential attitude to freedom of speech in state cases, the Supreme Court from the beginning applied free speech principles to the states with substantially greater vigor than to the restrictions at the federal level.

Gitlow is generally regarded as the first modern incorporation case, the genesis of both federal free speech curbs on state action and the larger project of making the same limitations that the federal Constitution imposes on the federal government applicable to the states. In both respects, moreover, it can also be seen as an important milestone in the larger twentieth century transformation of federal court practice and constitutional understanding centered on the assertion of individual rights. That linkage is no accident. For all the talk about federalism and state sovereignty in the U.S. Reports, the modern jurisprudence of constitutional rights does far more to constrain states than the federal government.

At first blush, that might seem surprising since the principal vehicle by which this is accomplished, the Fourteenth Amendment’s Due Process Clause, merely repeats the guarantee already applicable to the federal government under the Fifth Amendment. Of course, it could simply be that state officials are more prone to act improperly, but there are additional explanations, some of which may shed light on the why and wherefore of incorporation—most obviously the volume of litigation, the composition of cases, and the different dynamics presented by separation-of-powers issues compared to federal-state relations.

A century has now passed since Gitlow was handed down, and while Gitlow‘s causal role in constitutional law is open to question on not only the usual “realist” grounds but on doctrinal ones as well, it is unquestionably significant as at least a major episode in the story. The story has some nuances, more indeed than can be recounted here, but what follows are a few observations about Gitlow as a First Amendment case, about Gitlow as an incorporation case, and about the relationship between the two.