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.
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Why does the SCT use a different standard than C&PD used in
Schenck or even Holmes’s Abrams dissent?
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Is SCT’s distinction between the laws like the Espionage Act and the
NY law convincing? What problems do both kinds of laws pose?
Gitlow – Justice Holmes’s dissent
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Holmes believes that the c&pd should apply and that the Left Wing
Manifesto did not satisfy that test:
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No hint that people were going to rise up/no immediacy of
result
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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?
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?
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?

What values does protecting speech serve according to
Brandeis?
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?
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?