In Gitlo v. New York, we jump forward six years, and a very important distinction has happened. The United States is no longer at war. So the previous two cases, Schenck and Abrams, took place during World War I. Gitlo, we've moved to a different reality where the United States is not at war. And so the question is, do the precedents of Schenck and Abrams, which came under a time of war, still apply?
when the United States is not actively at war. So let's take a look at what the facts of this case. So New York, the state of New York, hence Gitlo v. New York, the state of New York passes what is known as a criminal anarchy statute. They passed this after the assassination of President McKinley, which, you know, they passed a law that made this made this after the fact in response to an assassination happening in the state of New York.
The statute made it a felony to advocate, advise, or teach the violent overthrow of the United States government. So it was a crime to do any of those things. The defendants in this case, get low among them, were members of the Socialist Party who were convicted of advocating the violent overthrow of the U.S. by publication of a document. The Supreme Court upholds these convictions.
So what is the issue in this case? Does the publication of a document advocating the overthrow of the government, is that protected by the First Amendment? The Supreme Court says no. that the criminal anarchy statute does not run afoul of the First Amendment of the Constitution and can still be used to prosecute these actions.
Now, to begin with, this is a 7-2 case, again, this time written by Judge Sanford. The first thing, there is a unanimous portion of this case. So there is a 9-0 portion of this case, and it is on one issue.
The court unanimously agrees that First Amendment freedoms, among them speech, are incorporated to the states via the 14th Amendment. So this is the case that incorporates the First Amendment's protection of speech to be applicable upon the states. And in the first case in which the Supreme Court incorporates that right to the states, they tell the states that they didn't violate the right.
So it's a weird case. They're like, absolutely, we have the authority to adjudicate whether your law violates the First Amendment because the First Amendment applies to you. But your law doesn't violate the First Amendment.
So it's an interesting way to do it. But the court in this case unanimously says that, yes, First Amendment protections are applicable to the state by the 14th Amendment. Moving on to the more substantive portions of these cases. So the defense in this case argued that. Advocacy must be defined as some definite immediate act leading to likelihood of a result.
So what Gitlo and his cohorts argue is that some advocacy for the violent overthrow of the government has to be defined as the definite action that leads to a likelihood of a result. Their defense in essence being that the action that we undertook, printing and distributing a leaflet, cannot be connected to any likelihood of the result that we advocated for, which was the overthrow of the United States government. That there is no connection, there's no causal link between those two happening.
The Supreme Court disagrees with them. The court does deal with the clear and present danger test here, but they say it does not apply, as it only applies to certain acts involving the danger of substantive evil. Here, the New York legislature is very different in what they argue. The New York legislature has already determined that a danger exists.
The court doesn't need to weigh in on if a danger exists. The court doesn't need to actually do that. The New York legislature has made that determination for them. There exists some danger, that danger being the violent overthrow of the government. And therefore, we're making laws that protect against the violent overthrow of the government.
So the Supreme Court majority, the seven judges in majority, completely dodge the idea of whether this danger actually exists, whether the likelihood of this action is to occur. So they simply skirt around the defense and say that they don't have to deal with it because the state of New York already made that determination. And so they ultimately state that in this case, absolutely, this speech can be suppressed and it does not violate the First Amendment. New York does not violate the First Amendment in doing so.
Just as in the previous case, Abrams, Justice Holmes and Justice Brandeis again dissent. They argue that the clear and present danger test from Schenck absolutely applies here, that there would be no other condition, better condition from when this test could be applied. And they argue that there's absolutely no present danger to the violent overthrow of the U.S. government.
There's no connection to it. And therefore, there should be no convictions. The convictions should be thrown out.
That these individuals are simply engaging in advocacy and the likelihood of their advocacy being successful is next to none. How, if their advocacy can't be successful, how could it be a clear and present danger? may even take on the majority even more specifically and argue that the majority is dodging the clear and present danger test because there's no rational person who would argue that this is a present danger to the United States. They argue that if in the long run, the beliefs expressed in proletariat dictatorship are destined to be accepted by the dominant forces of our community, the only meaning of free speech is that should be given their chance and have their way. Their argument is that if, over time, what these individuals advocate for happens, that's absolutely what free speech would allow, that they should be given their chance to win out in the marketplace of ideas.
And so what happens between that case and this case is we remove war from the equation. The thing is, once you remove war from the equation, what changes? And the answer for the Supreme Court is apparently nothing.
For Justice Brandeis and Justice Holmes, it's very clear that there's no danger. There's nothing tangible that you can point to. But after World War I, the fear of socialism and also the fear of communism.
So let me get this out of the way. It's not only individuals today who get the two of those confused. Socialism, communism, very different concepts, but they are conflated today.
And if it makes you feel any better, they were conflated in 1925 as well. But the fears of communism, the fear of socialism was enough for... in this case, the state of New York, to regulate against their advocacy. But for Holmes and Brandeis, that seems just preposterous. They're advocating for a new form of government.
If that new form of government is given to the marketplace of ideas, it might be, probably likely be, perceived as exceedingly stupid, and therefore it would get defeated in the marketplace of ideas, which is the purpose of the First Amendment's protection to begin with, is allow society to have this marketplace of ideas, let them compete, and whatever wins is the direction you take. Holmes and Brandeis see this as shutting down part of that marketplace. Holmes and Brandeis are not socialists. They are disturbingly capitalist.
And you would see this if we were doing economic cases during this time period. But their argument is that, basically their argument is, if I can boil it down to the most simple way, let these idiots advocate for their idiocy and everyone else in society who's listening will tell them they're idiots. But you aren't letting society have the reaction to that. The government is having the reaction to that. And that very clearly should be a violation of the First Amendment.
The takeaway of these three cases, because this is the last case that Holmes is in, Holmes and Brennan is, is that you've got these two. Two guys rapping on the door saying, hey, you have to test this. That's a likelihood it's going to occur.
If you're just saying that, well, they're advocating for the overthrow of the government and the government can stop that because of national security. What you're missing is the whole other side of it, which is, is what they're advocating for actually going to be possible? And the answer to that is. Especially in this case, no, five guys from upstate New York, circulating leaflets, have no chance in hell of overthrowing the United States government, violently or not. They simply do not have the ability to do so.
And therefore to make a law to prosecute them for their speech and what they believe is a violation of the First Amendment. They've taken no action. It's not like they took up arms against the American government at that point, throw speech out the window, and they're actually engaged in lawless action. But the thinking of ideas, the talking of ideas, even if those ideas are we should overthrow the government, is very different than the action of overthrowing the government or attempting to. And for Holmes and Brandeis, that distinction of.
likelihood of happening is important. Only when it comes to speech. Like if in this case, these individuals had attempted to overthrow the government and were just really freaking horrible at it, they would still be prosecuted because they had actually engaged in action.
But just advocating for something is very different. Advocating is speech. Action is action. Very different circumstances.