Talk:Gitlow v. New York

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what were two or three main argument given to support the decision ?

OReich:

I read Gitlow v. New York, via the page's link. Despite popular opinion, including that scholars and judges, and despite subsequent rulings saying otherwise, Gitlow v. New York DOES NOT EXTEND FREE SPEECH TO THE STATES.

In deciding the case, the Court had to consider two questions: 1. Does the Fourteenth Amendment's Due Process Clause extend the Bill of Rights' Free Speech protections from the Federal Government to the State Governments? 2. Were the statements of the accused speech protected by Free Speech protections (the "can't shout fire in a crowded theater" argument)?

The Supreme Court did not need to consider the first question, because the Supreme Court's answer to the second question was decisive on its own: because the accused's statements were not protected by free speech anyway, it did not matter if the State Governments had to protect Free Speech.

This is the text in Gitlow v. New York concerning Incorporation and the Due Process Clause (I added the capitalization):

"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. WE DO NOT REGARD THE INCIDENTAL STATEMENT in Prudential Ins. Co. v. Cheek (259 U.S. 530, 543 , 42 S. Ct. 516, 27 A. L. R. 27) that the Fourteenth Amendment imposes no restrictions on the States concerning freedom of speech, AS DETERMINATIVE OF THIS QUESTION."

The opinion, in that parapraph, states that whether or not the Fourteenth Amendment's Due Process Clause extends Free Speech and Freedom of the Press, the Court would still rule against the accused, because (as explained later in the opinion), his statements are not covered by Free Speech anyways ("Can't shout fire in a crowded theater" logic).

That paragraph from the opinion is not ambiguous in its meaning, nor in its logic. The Supreme Court did not need to consider whether or not Free Speech had to be protected by the states. The ruling states that prior positions taken ("the incidental statement...") are not "determinative of this question."

The paragraph also states that they will assume the Due Process Clause incorporation argument "for present purposes," meaning because that assumption aids them in this case, not because the incorporation argument is actually correct, let alone empirically correct. If it were emppirically correct, they would not say "for present purposes."

Further, it claims to "not regard" statements in other cases. When the Supreme Court contradicts prior rulings, they don't simply mention this contradiction, they explicitly correct and overturn those prior rulings.

Why is it the opinion of ALL scholars that Gitlow v. New York extends Free Speech to the states? Could it simply be a result of misreporting by the media initially, combined with subsequent Supreme Court opinions claiming this to be true? I don't know. I'm not arguing whether or not the Supreme Court's ruling was correct; I'm simply stating WHAT the Supreme Court is ruling in the case. —Preceding unsigned comment added by OReich (talk • contribs) 23:29, 6 October 2007 (UTC)

[edit] Clear and Present Danger Clause/Bad Tendency Test

Hi! I just wiki'ed this "bad tendency test" thing, and it turns out to be identical to the "clear and present danger" test established by Schenck v. United States. How did the "bad tendency test" come out of the Abrams v. United States case, then? Please straighten this out.

Thanks,

Yu Han —Preceding unsigned comment added by 68.61.68.211 (talk) 21:10, 28 December 2007 (UTC)