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Gitlow v. New York : Deference and Free Speech Regulations

Gitlow v. New York : Deference and Free Speech Regulations. Majority’s Test:

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Gitlow v. New York : Deference and Free Speech Regulations

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  1. Gitlow v. New York: Deference and Free Speech Regulations Majority’s Test: When the legislative body has acted reasonably and not arbitrarily in determining that utterances of a certain kind involve such danger of substantive evil that they may be punished, the court must defer to the legislature’s judgment. • Why does the SCT use a different standard than C&PD used in Schenck or even Holmes’s Abrams dissent? • Is SCT’s distinction between the laws like the Espionage Act and the NY law convincing? What problems do both kinds of laws pose?

  2. Gitlow – Justice Holmes’s dissent • Holmes believes that the c&pd should apply and that the Left Wing Manifesto did not satisfy that test: • No hint that people were going to rise up/no immediacy of result • Justice Sanford would respond that urging people to future action is punishable (i.e., immediacy not required due to the nature of the speech) • Similar to Hand’s formula in Masses • Is there something about the nature of the speech (advocacy of the overthrow of the government) that favors Sanford’s response?

  3. Whitney v. California – speech & association • California criminal syndicalism law: • Any person who . . . organizes or assists in organizing , or is or knowingly becomes a member of an organization . . . organized to advocate, teach or aid and abet the commission of crime, sabotage, or unlawful acts of force and violence or unlawful methods of terrorism as a means of . . . effecting any political change . . . is guilty of a felony. • Raises 2 questions re whether one can be criminally punished: • Is the organization's speech punishable? • If so, what degree of involvement with that speech is necessary for a member of the organization to be criminally responsible?

  4. Brandeis’s Whitney concurrence – clear & present danger • “To justify suppression of free speech . . . there must be reasonable ground to fear that the danger apprehended is imminent. There must be reasonable ground to believe that the evil to be prevented is a serious one.” • C&PD test now has significant additional reqm’ts: • Danger to be prevented must be imminent • No time for counterspeech • There must be a probability of serious substantive evil • Why is a serious evil required? Because of the VALUE of free speech. • What values does protecting speech serve?

  5. Whitney and freedom of association • California law allowed punishment of anyone who was a member of an organization advocating criminal syndicalism. • Raises the question: • What degree of involvement with a subversive organization is necessary before one can be criminally guilty for the speech of others in the organization? • What did Anita Whitney do to violate the California Law? Why does her conviction satisfy the Constitution according to SCT? • Should “knowledge” and “membership” be sufficient for criminal punishment?

  6. Value of protecting association Why does this debate matter? What happens when officials go after “members” of organizations with illegal and legal ends? Why is it important to protect association with others for expressive purposes?

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