Gitlow v. New York

Believe it or not, Americans have not always been entitled to their prized freedom of speech -- on a state level, anyway. Between the national acceptance of the Bill of Rights in 1791 and 1925, there was no legal reason that individual states had to allow residents that privilege. The reason for this is because the First Amendment states "Congress shall make no law" (emphasis added). While Congress was bound by the Constitution to allow free speech, states were held to no such standard.

In 1868, however, the 14th Amendment was ratified in the wake of the Civil War. With its passing came what was eventually known as the Due Process Clause, which states No State shall ... deprive any person of life, liberty, or property, without due process of law. This amendment started the trend of holding states accountable for what the Constitution says, as well.

Now for the case.

In 1923, Benjamin Gitlow was one of four people indicted by the Supreme Court of New York under the charge of criminal anarchy. He was a prominent member of the Socialist Party and published a pamphlet entitled "The Left Wing Manifesto," and in New York, it's illegal to advocate violently overthrowing the government. He was tried and convicted. His case came before the Supreme Court due to a writ of error, which is issued by a higher court to a lower court requiring the record be submitted to check for error.

No court disputed the manifesto explicitly advocated overthrowing the government, and the courts both recognized that having freedoms of speech and of the press do not entitle one to absolute freedom. While the Supreme Court did acknowledge that for present purposes, we may and do assume that freedom of speech and of the press … are among the fundamental personal rights and ‘liberties’ protected by the due process clause of the Fourteenth Amendment from impairment by the States, it nevertheless upheld Gitlow's conviction because his pamphlet was still regarded as something that could incite a revolution. But his case, at least, began a trend of allowing citizens to appeal to the federal level if their basic rights were denied by the state.

So be grateful. If you had been alive anytime before 1925, there would have been no guarantee that you would have been entitled to freedom of speech in your state of residence.