Gitlow v. New York

[Emsworth]

The only part of this decision that was correct was the ruling that the First Amendment binds the states. The rest of the decision was largely incorrect.

Firstly, the Court held that the First Amendment applies to the states by virtue of the Fourteenth Amendment's due process clause, rather than the privileges or immunities clause. In fact, it should have ruled the opposite. It is the privileges or immunities clause which applies the Bill of Rights to the states. The due process clause has a much more limited meaning.

Secondly, after holding that the First Amendment applies to the states, the Supreme Court held that the specific law in this case did not violate the freedom of speech. New York had punished the dissemination of Communist pamphlets, but the punishment was upheld by the Supreme Court, contrary to the free speech clause.

On the whole, therefore, Gitlow was wrong on two grounds: (1) It applies the First Amendment to the states for the wrong reason, and (2) It didn't apply the First Amendment correctly.

This decision, and several others starting with Slaughterhouse, have left Fourteenth Amendment jurisprudence in complete disarray.