Supreme Court Cases: The Roaring 20’s
By a 7-2 vote, with only Justices Oliver Wendell Holmes and Louis Brandeis dissenting, the Supreme Court upheld Gitlow’s conviction. Of great significance, however, the Court, using the “incorporation” doctrine, declared that the freedom of speech and press were “among the fundamental rights and liberties protected by the due process clause of the Fourteenth Amendment from impairment by the states.” Nevertheless, the Court’s majority ruled that “states can punish utterances endangering the foundations of government and threatening its overthrow by unlawful means” because such speech would “present a sufficient danger to the public peace and to the security of the State.” The majority used the analogy of a smoldering campfire that could burst into flame at any time and noted that the state does not have to wait until the fire starts to take action to prevent it.
In their famous dissent, Justices Holmes and Brandeis stuck to the “clear and present danger rule” which Holmes had first enunciated in the 1919 Schenck case. They argued that what they called “the redundant discourse” in the pamphlet had “no chance of starting a present conflagration. Holmes wrote: “Every idea is an incitement. It offers itself for belief and if believed it is acted on unless some other belief outweighs it or some failure of energy stifles the movement at its birth. … If in the long run the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way.”