Today in Supreme Court History: June 8, 1925

6/8/1925: Gitlow v. People of the State of New York decided.

Comments

[Dan Schiavetta]

Gitlow v. New York, 268 U.S. 652 (decided June 8, 1925): New York’s “criminal anarchy” statute (still on the books!) permissible despite First Amendment because it penalizes advocating violent overthrow of government (here, an early Communist tract) --

-- limited by Brandenburg v. Ohio, 395 U.S. 444 (also decided June 8, but in 1969): First Amendment protected pro-Klan rally at which people dressed in white robes and lit crosses because no “imminent lawless action” urged (perhaps a different result if speech was made in a black neighborhood)

Lomax v. Ortiz-Marquez, 590 U.S. --- (decided June 8, 2020): applying Prison Litigation Reform Act prohibition on in forma pauperis petitions if there have been three previous dismissals as frivolous or for failure to state a claim, even though two of them stated they were without prejudice

Muscarello v. United States, 524 U.S. 125 (decided June 8, 1998): “carrying a firearm” aggravation factor in drug trafficking charge includes firearm in vehicle used for drug transaction even though not picked up

Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (decided June 8, 2009): appellate judge should have recused himself on review of large verdict against company whose CEO had bankrolled his election campaign (unsurprisingly, the judge had voted to throw out the verdict)

Zivotofsky v. Kerry, 576 U.S. 1 (decided June 8, 2015): striking Act of Congress allowing American citizen born in Jerusalem to list his place of birth as “Israel” despite Jerusalem not recognized as Israel’s capital; President has exclusive power to recognize foreign nations and can disregard Congressional directives (this result is ironic, given Truman’s immediate recognition of Israel in 1948)

Houston, E. & W.T.R. Co., 234 U.S. 342 (decided June 8, 1914): state violated Dormant Commerce Clause by authorizing different railroad rates for intrastate and out-of-state travel

Virginia v. West Virginia, 234 U.S. 117 (decided June 8, 1914): sur-reply by West Virginia allowed though not authorized by rules because states as litigants in this original jurisdiction case are entitled to procedural slack (this was a dispute, won by Virginia, as to reimbursement for public works projects when W. Va. was still part of that state) (Virginia was given a lot of slack too; it didn’t file a complaint until 1906, 45 years later; there must be no statute of limitations on claims by state vs. state) (this case also discussed on March 6)

Health and Hospital Corp. of Marion County v. Talevski, 599 U.S. 166 (decided June 8, 2023): public nursing homes can be sued under §1983 based on violations of Federal Nursing Home Reform Act of 1987 (here, as to improper restraints and transfers)

Burdick v. Takushi, 504 U.S. 428 (decided June 8, 1992): Hawaii prohibition on write-in voting did not violate First Amendment right to free association because Hawaii has liberal rules allowing candidates to get onto ballot

Dalehite v. United States, 346 U.S. 15 (decided June 8, 1953): 2300 tons of fertilizer made at the direction of the federal government and under its control exploded, causing a chain reaction of oil fires which killed 581 people. Personal injury suits dismissed because of Tort Claims Act exception for “discretionary” acts with no negligence shown. (Congress subsequently passed a law allowing the victims to sue -- here we see the federal government saddling itself with "ex post facto" liability)

[JoeFromtheBronx]

Gitlow also noted:

“For present purposes we may and do assume that freedom of speech and of the press — which are protected by the First Amendment from abridgment by Congress — are among the fundamental personal rights and “liberties” protected by the due process clause of the Fourteenth Amendment from impairment by the States.”

The Supreme Court previously rejected calls to apply the Bill of Rights to the states. John Marshall Harlan was the main dissenter. Gitlow in hindsight set the ball rolling in the other direction.

[Dan Schiavetta]

Thanks.

I didn’t realize that “incorporation” began so early.

[JoeFromtheBronx]

To be clear, the Supreme Court a few times left open the possibility that “due process of law” included rights mentioned in the Bill of Rights. Just compensation for property taken for public use was protected back in 1897. [CHICAGO, BURLINGTON AND QUINCY RAILROAD COMPANY v. CHICAGO.]

Gitlow became the true beginning of the modern doctrine.

[Sam Bankman-Fried]

Except the 2A was drafted as an individual right at inception! Duuuuuuh.

[David Nieporent]

So was the 1A. What's your point?

[Rossman]

Stick to your Supreme Court history posts. These are good. The ones where you give your opinion on legal matters are not.