Gitlow (a Socialist!)
published a manifesto that called for general strikes and other actions in
the support of Socialism.
He was arrested for the crime
of "Criminal Anarchy."
"Criminal Anarchy"
was a crime under New York law that made it illegal to advocate the
overthrow of government by force or violence.
Gitlow was convicted of
criminal anarchy. He appealed.
Gitlow argued that the New
York law was a violation of his 1st Amendment right to free speech.
The US Supreme Court upheld
the conviction.
The US Supreme Court found
that the 1st Amendment
was incorporated into the States via the 14th
Amendment.
They hadn't actually said
that before this case.
The Court looked to Court
looked to Schenck v. United States
(249 U.S. 47 (1919)) and Frowerk v. United States (249 U.S. 204 (1919)) which found there was a
clear and present danger exception to freedom of speech.
However, the Court rejected
the clear and present danger
standard in favor or a reasonableness approach.
The reasonableness
approach basically says that a law
limiting free speech is still constitutional as long as it is
'reasonable.'
Also known as the dangerous
tendency test.
That's a more inclusive
standard than clear and present danger. The reasonableness approach will find laws constitutional even if they
forbid speech that isn't a direct, imminent danger.
In this case, the Court
found that the New York law was reasonable, and therefore met constitutional
scrutiny.
Basically, this case said that
laws limiting free speech can be
constitutional as long as they are not arbitrary and unreasonable
exercises of a States' police power.
