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Gitlow Versus New York
Background
The case focused on the actions of Benjamin Gitlow when he published a 1919 manifesto in the newspaper “The Revolutionary Age” which was then a widely circulated publication (Lendler 14). Due to the contents of the manifesto which the government determined as being “subversive”, he was subsequently arrested under the charge of inciting criminal anarchy. At the time Gitlow was part of the Socialist Party of America and there were numerous instances where members of the local communist or socialist party were arrested due to similar subversive acts. The point of contention, in this case, is whether local state statutes can be considered as a violation of first amendment rights when it comes to the arrest of an individual who is merely expressing his own opinion.
Decision
The decision of the court in the case of Gitlow versus New York is that it supported the arrested due to the subversive nature of the text that was published. While it is true that a state cannot outright prohibit freedom of speech, there are exceptions to this such as in cases that involve a threat to the stability of the state (Vile 1716). Due to the nature of the manifesto, it was considered as a threat and thus Gitlow’s first amendment rights were not applicable.
Long Term Effect
The long term impact of this ruling limits the capacity of citizens within the U.S. to post, distribute or otherwise publish anti-government rhetoric that can be considered as being malicious or destabilizing towards the state (Heyman 1). However, what can be deemed under such a category is quite broad and thus can be abused.
Schenck Versus U.S.A
Background
Schenck versus the U.S.A can be described as a case that showcases the “situational” nature of the application of particular rights. Charles Schenck was arrested based on his actions of distributing leaflets to discourage young men from enlisting during the draft of the first World War (Healy 36). This was considered a criminal act since it encouraged young men to violate the draft which was also a criminal offense.
Decision
Ordinarily, the actions of Schenck could be construed as being protected under this 1st Amendment Right of freedom of speech. However, there were several particulars to this case that were pointed out by the judge that supported the continued incarceration of Schenck. The first is that the 1st Amendment is not an absolute right in that it enables a person to publish whatever they want without consequence. It is still subject to legal limitations based on the circumstances involved (ex: copyrights, subversive nature of the text, etc.) (Schauss 17). In the case of Schenck, his actions not only encouraged violations of the law but are also considered a danger to the state due to the wartime situation that it found itself in. It is based on this that a defense involving Schenck’s first amendment rights was not possible resulting in his incarceration.
Long Term Effect
The long term effect of the decision actually resulted in differing points of view regarding its application with some judges viewing its precedent based on the concept of “clear and present danger” as seen in the case of the 9/11 attacks. On the other hand, some judges argue that charges should only be brought on based on the time and place in which they committed a violation and not necessarily the content of what they were distribution such as a person being considered as a public nuisance rather than a true criminal (Baker 485).
Works Cited
Baker, Thomas E. “Clear And Present Dangers: The Importance Of Ideas And The Bowels In The Cosmos.” Constitutional Commentary 16.3 (1999): 485. Print.
Healy, Thomas. “The Justice Who Changed His Mind: Oliver Wendell Holmes, Jr., And The Story Behind Abrams V. United States.” Journal Of Supreme Court History 39.1 (2014): 35-78. Print.
Heyman, Steven. “The Dark Side Of The Force: The Legacy Of Justice Holmes For Free Speech Jurisprudence.” Conference Papers — Law & Society (2010): 1. Print.
Lendler, Marc. “The Time To Kill A Snake: Gitlow V. New York And The Bad-Tendency Doctrine.” Journal Of Supreme Court History 36.1 (2011): 11-29. Print.
Schauss, Michael E. “Putting Fire & Brimstone On Ice: The Restriction Of Chaplain Speech During Religious Worship Services.” Army Lawyer (2013): 17. Print.
Vile, J. R. “Gitlow V. New York: Every Idea An Incitement.” Choice: Current Reviews.
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