Gitlow Case Essay

The Gitlow case is a landmark case of United States history and fundamental in the protection of civil liberties. The judgment resulted in three major milestones in civil rights. First, it extended the protection of the First Amendment’s freedom of speech to the states, rather than being reserved only to the federal government. Second, the Gitlow case marked the beginning of a pattern of “incorporation”, further extending constitutional rights to the states. Finally, the judgement of the case was a major stepping stone towards future developments of political equality. While the judgment was not favorable for Gitlow himself, the case of Gitlow v. New
York was a major victory for civil rights and is still felt today.
In 1919 New York City, a

and Louis Brandeis voted against upholding
Gitlow’s conviction. Citing the “clear and present danger” test, established in Schenck v. U.S.
(1919), they argued that because the small minority of those who shared the defendant’s views presented no clear danger of overthrowing the government, that Gitlow’s conviction was unconstitutional (Britannica). In the dissenting opinion, Holmes declared:
The only difference between the expression of an opinion and an incitement in the narrower sense is the speaker's enthusiasm for the result. Eloquence may set fire to reason. But whatever may be thought of the redundant discourse before us, it had no chance of starting a present conflagration. (Murphy)
The “clear and present danger” test was rejected in the Court’s decision to uphold
Gitlow’s conviction. The Court instead referred to the “dangerous tendency” test, also known as the “bad tendency” test, to determine whether his actions could have incited violence
(Britannica). On the merits of the test, states had the right to forbid speech and publication if they have a tendency to incite dangerous action that may threaten public security. The test also justifies the prohibition of an entire class of speech if it is deemed dangerous to society, that