Bill of Rights
 Articles 1-7 ratified when New Hampshire,
the 9th state, ratified 6/21/1788
 Bill of Rights proposed 9/1789 & ratified
12/15/1791
 Rights begin with “Congress shall make no law ...”
meant that the Framers intended only to limit the
power of the federal government. Rights did not
apply to the States & federal government could not
restrict state laws that limit the Bill of Rights.
(Baron v. Baltimore 1833). States free to restrict
liberties as saw fit.
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1st Amendment
 1st 10 amendments needed to protect us from abuse
of federal government power.
 “Congress shall make no law respecting
establishment of religion, or prohibiting the free
exercise thereof; or abridging the freedom of speech,
or of the press, or the right of the people peaceably to
assemble, and to petition the gov’t for redress of
grievances.”
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1st Amendment
 Seems to protect against any law
 Can one justify murder in the name of religion?
 Ruin another’s reputation with lies?
 1st Amendment Rights not absolute, but majestic
generalities. We must make laws to protect
innocent against great harms.
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Preferred Position Doctrine
 1st Amendment rights are higher rights
than any others in the Constitution.
 When law that regulates non 1st
Amendment rights (such as the 2nd)
taken to court ... The court presumes
the law is constitutional (legal).
 When any law that regulates 1st
Amendment rights is taken to court ...
it presumes the law unconstitutional ...
illegal.
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Incorporation by the 14th
 The 14th Amendment ratified 1868. Provided “... nor
shall any State deprive any person of life, liberty, or
property without (federal) due process of law.”
 View “liberty” as constitutionally protected.
 In 1925 U. S. Supreme Court, with the free speech &
press case Gitlow v. New York, 1st began to apply
(incorporate) most of the Bill of Rights to apply to the
States.
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Gitlow v. New York
 Facts of the Case: Gitlow, a socialist, was arrested for distributing
copies of a “manifesto" that called for socialism through strikes and
class action of any form” (could be violent like some union strikes).
 Convicted under state “criminal anarchy” law, which punished
advocating the overthrow of the government by force.
 Gitlow argued that since was no illegal action flowing from the
manifesto's publication, the statute penalized utterances lacking such.
 New York courts decided anyone who advocated the doctrine of violent
revolution violated the law.
Threshold issue: Does the First Amendment apply to the states?
Yes. The Supreme Court stated that “the rights of freedom of speech
and freedom of the press were "among the fundamental personal
rights and 'liberties' protected by the due process clause of the
Fourteenth Amendment from impairment by the states.“
Gitlow’s conviction upheld, but NY governor pardoned him because
was viewed as a political crime.
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