Journal of Free Speech Law: "The Curious Case of Benjamin Gitlow," by Ronald K.L. Collins

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:

This is a story about a man with incredible luck. It was made possible by some remarkable lawyers and judges, and it ended unpredictably. It is the story of Benjamin Gitlow (1891–1965), a man who loved a freedom others feared. It is also a short story about a segment of the history of the First Amendment, a history that Gitlow v. New York (1925) helped to shape. Curious then that the same man who first fought for freedom later fought to suppress it—he was intolerant of those with opposing opinions. In time, his turncoat stripes would reveal his true colors, which made his life story all the more curious. Moral: We take our free speech heroes as we find them, warts and all.

Comments

[MickeyFitz]

The problem with this entire story is the assumption that the radical left actually believed in free expression when the reality was and is that free expression is merely a tool to be used to destroy the democratic system.

[Jack Jordan]

Mickey, you're not entirely wrong. But are you right in thinking that the system they sought to destroy truly was democratic?

Even as late as 1857, SCOTUS emphasized the following in Dred Scott v. Sandford:
“The words ‘people of the United States‘ and ‘citizens‘ are synonymous terms, and mean the same thing.” “They are” the “sovereign people,” and “every citizen is one of this people, and a constituent member of this sovereignty.” As the First Amendment emphasized, “the privileges and immunities of citizens” include “the full liberty of speech in public and in private upon all subjects upon which” any “citizens might speak.” But not every person is “permitted to share in" the rights and "duties of the citizen" because such person is "not, by the institutions and laws of the State, numbered among its people. He forms no part of the sovereignty of the State, and is not therefore called on to uphold and defend it.”

The text of our Constitution, itself, is proof of how undemocratic some or all states (much or all of our nation) were throughout much of our history. Not until the Fourteenth Amendment was ratified in 1868 did our Constitution emphasize that "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside."

Even though that same amendment emphasized that "No State" had any power to "make or enforce any [purported] law" that would "abridge the privileges or immunities of citizens of the United States" or "deprive any person of life, liberty, or property, without due process of law" or "deny to any person within its jurisdiction the equal protection of the laws," many states continued to do all the above, especially regarding the right to vote and other exercises of the freedoms of expression, communication, association and assembly secured by the First Amendment.

Regarding "[t]he right of citizens of the United States to vote," people in power continued to discriminate against some citizens "on account of race, color, or previous condition of servitude," so the Fifteenth Amendment (ratified in 1870) prohibited doing so even more explicitly and emphatically than the Fourteenth Amendment.

Regarding "[t]he right of citizens of the United States to vote," people in power continued to discriminate against some citizens "on account of sex," so the Nineteenth Amendment (ratified in 1920) prohibited doing so even more explicitly and emphatically than the Fourteenth Amendment.

Regarding "[t]he right of citizens of the United States to vote," people in power continued to discriminate against some citizens "by reason of failure to pay" (including the inability to pay) "any poll tax or other tax," so the Twenty-Fourth Amendment (ratified in 1964) prohibited doing so.

Regarding "[t]he right of citizens of the United States" to "vote," people in power continued to discriminate against some citizens "on account of age," so the Twenty-Sixth Amendment (ratified in 1971) prohibited doing so after the age of "eighteen years."

[Jack Jordan]

Entertaining and insightful article! It's unfortunate that Pollack didn't survive until 1965. He really would have appreciated how in New York Times Co. v. Sullivan in 1964, a unanimous SCOTUS recognized and emphasized the true source of our First Amendment rights and freedoms (which, obviously, is not the First Amendment) and that such rights and freedoms necessarily are included in the privileges and immunities of citizens.

Clearly, all “public officials” are “public servants” and “public men” are “public property,” so “discussion cannot be denied and the right” and “the duty” of “criticism must not be stifled.” The primary purpose of the First Amendment was to secure “the privilege for the citizen-critic of government. It is as much his duty to criticize as it is the official’s duty to administer.” No public servant can “give public servants” a “preference over the public they serve” by denying “critics of official conduct” at least “the immunity” that the people, themselves, “granted” to “officials.”

"Madison [emphasized vital principles that permeated every part of our system of national government, i.e.,] that the [original] Constitution created a form of government under which ‘The people, not the government, possess the absolute sovereignty.’ The structure of the government [prescribed by our Constitution] dispersed power in reflection of the people’s distrust of concentrated power, and of power itself at all levels."

SCOTUS in Sullivan (quoting Madison) emphasized that in our “Republican Government” (in which the people are sovereign), in general, “the censorial power” necessarily “is in the people over the Government, and not in the Government over the people.”

Clearly, the First Amendment merely explicitly or implicitly acknowledges rights and freedoms that flow from our sovereign power over all our public servants, state and federal. As the Tenth Amendment clarified, the First Amendment merely "reserved" to "the people" certain "powers" inherent in our sovereignty.

[Jack Jordan]

To be more fair to Madison (and more fair to the First Amendment and to the original Constitution and to many of the people responsible for writing or ratifying them), we should note that Madison and many others were concerned not only with an “oppressive majority.” They were concerned with any concentration of power that would promote oppression and tyranny.

Madison (rightly lauded as the Father of the Constitution and the Father of the Bill of Rights) emphasized in Federalist 47 that our written Constitution and our constitution of government are "a reflection on human nature" inasmuch as they employ "devices" that are "necessary to control the abuses of government." All "government itself," is "but the greatest of all reflections on human nature."
Madison emphasized the self-evident truth that "the preservation of liberty requires that" our Constitution prescribe how "power should be" divided and restrained. "The oracle who" was "always consulted and cited on this subject" from the 1760's through the 1780's was "the celebrated Montesquieu." Montesquieu in 1754 famously emphasized that "[t]here can be no liberty where the legislative and executive powers are united in the same person, or body of [people]," or, "if the power of judging be not separated from" both "the legislative and executive powers." So Madison (and many Americans) in the 1780's famously emphasized that "[t]he accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many" is "the very definition of tyranny."

No matter who wields power or how great or small their number, the sad truth is all power is amenable to abuse and it will be abused. That sad, self-evident truth was understood by the people who wrote or ratified our Constitution, the Bill of Rights, the Reconstruction Amendments, Amendments XIX, XXIV and XXVI.