Part Two: Gitlow and a New Doctrine

Then, in 1925, a hole in this dike of constitutional principle appeared. In the case of Gitlow v. New York, one of a number of cases challenging the constitutionality of convictions under state sedition laws, the Court said, “For present purposes we may and do assume 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.” Note: the Court said, “For present purposes we may . . . assume” that First Amendment freedoms of speech and the press apply to the states. There was no reference to precedent—because there was no precedent to support this rule. There was no clear statement that these First Amendment liberties were included, or “incorporated,” into the concept of liberty protected by the Due Process Clause: just this rather weak heuristic statement that the Court is going to assume for the purpose of deciding the Gitlow case that the Free Speech and Free Press Clauses of the First Amendment restrict state action as they do federal action. The Court left open the question of whether they would apply the First Amendment standards in other state action cases. And, like other watershed cases such as Marbury and Cohens, in which the Court established a principle of law but sought to avoid a storm of controversy, the Court ruled in Gitlow that the law did not violate First Amendment standards.

The question of whether Gitlow was a decision establishing constitutional precedent was soon answered, though in a rather roundabout way. A year after Gitlow, in the Whitney case, the defendant challenged a state syndicalism statute on several grounds, including on Due Process-First Amendment grounds. The Court matter-of-factly considered the challenge, cited Gitlow as precedent, and concluded that the statute did not violate defendant’s First Amendment free speech, assembly, and association rights. In Fiske, decided the same day as Whitney, the Court struck down a similar Kansas syndicalism statute, holding that it did violate defendant’s liberty without due process and contrasting the Kansas law to the statutes in Gitlow and Whitney.

In none of the three cases did the Court clearly say that the First Amendment was incorporated into the Fourteenth Amendment Due Process Clause. That statement first came in the 1931 Stromberg case, where the Court said, “It has been determined that the conception of liberty under the due process clause of the Fourteenth Amendment embraces the right of free speech.” (Note the passive, indirect voice.) And a few days later in Near v. Minnesota, a free press case, the Court, after citing Barron v. Baltimore, finally stated, “This court was not called on until 1925 to decide whether the ‘liberty’ protected by the Fourteenth Amendment includes the right of free speech. That question has finally been answered in the affirmative,” citing Gitlow, Fiske, and Stromberg.

This short history delineates a rather sneaky, back-door way of overruling a firm legal precedent and establishing a new rule, but once the Court agreed that the “liberty” protected by the Fourteenth Amendment due process clause against state action included First Amendment free speech, free press, and peaceful assembly and association, the door was opened to other individual rights explicitly protected by the Bill of Rights by a process described as “selective incorporation.”

As of today, most but not all of the rights mentioned in the Bill of Rights have been incorporated. To determine the constitutional formula or rule for deciding which rights should be incorporated, please read the excerpts from the 1937 case of Palko v. Connecticut, the case in which incorporation doctrine was first discussed, and the 1968 case of Duncan v. Louisiana, which describes the current rule. Various positions on incorporation have been taken by member of the Court. Some rejected any overt incorporation, some have agreed that some but not all of the Bill of Rights should be incorporated (selective incorporation), some have argued for incorporating all—but only—the Bill of Rights (total incorporation), and some have argued that all of the Bill of Rights plus other rights should be included in the “liberty” protected by the Fourteenth Amendment Due Process Clause. For a survey of the positions taken on incorporation, you may want to read the different justices’opinions in the case of Adamson v. California, cited in the accompanying materials.