Journal of Free Speech Law: "Representing Benjamin Gitlow: Charles Recht and Walter Nelles," by Eric Easton
From the "Gitlow v. New York at 100" symposium, held this year at the Arizona State University Sandra Day O'Connor College of Law.
The article is here; the Introduction:
As we celebrate the 100th anniversary of Gitlow v. New York, it is only natural that we focus on the landmark presumption of incorporation in the majority opinion and the dissenting opinion that would foreshadow today's incitement standard. But perhaps we can spare a moment to consider the dedicated lawyers who represented Gitlow and his fellow radicals throughout the process. That their efforts, at least in the short term, were largely futile is certainly attributable to the historical moment and the prevailing interpretation of the First Amendment, not to any lack of competence or commitment on their part.
Indeed, the lawyers who represented Benjamin Gitlow were among the best of a small cadre of lawyers who represented leftist radicals of various persuasions in the early 20th Century. Some, like Clarence Darrow, would achieve great fame in their own time; others, most in fact, would labor in relative obscurity and are largely forgotten today. And while all were dedicated to their radical clients, their backgrounds, career paths, and personal motivations could be quite different. This article will profile two of Gitlow's lawyers, Charles Recht and Walter Nelles. Both were involved from the earliest stages of Gitlow's representation, although only Nelles played a significant role in the U.S. Supreme Court proceedings. Along the way, we will encounter Darrow, Walter Pollak, and others who made substantial contributions to the Gitlow litigation.
In examining the representation of Benjamin Gitlow, let us keep in mind the various interests that powered it. Fundamental, of course, is the interest that all criminal defense lawyers have in the acquittal of their clients. But then some lawyers and clients may have political or personal interests that color their litigation strategy and tactics. And some may have philosophical or ideological goals that transcend mere acquittal and seek to alter the legal landscape as much for the future as the present. All of these factors are present in the Gitlow representation.