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Gitlow v. New York : Deference and Free Speech Regulations

Gitlow v. New York : Deference and Free Speech Regulations. Majority’s Test:

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Gitlow v. New York : Deference and Free Speech Regulations

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  1. Gitlow v. New York: Deference and Free Speech Regulations • Majority’s Test: • When the legislative body has acted reasonably and not arbitrarily in determining that utterances of a certain kind involve such danger of substantive evil that they may be punished, the court must defer to the legislature’s judgment. • SCT used deferential standard w/ NY law because it specifically targeted “dangerous speech.” Needed to use C&PD w/ Espionage Act because that law spoke in terms of “prohibited acts” – C&PD was a bridge to ensure officials punished only dangerous speech. • Does one law pose less danger to speech than the other – or are the dangers just different?

  2. Gitlow – Justice Holmes’s dissent • Holmes believes that the c&pd should apply and that the Left Wing Manifesto did not satisfy that test: • No hint that people were going to rise up/no immediacy of result • Justice Sanford would respond that urging people to future action is punishable (i.e., immediacy not required due to the nature of the speech) • Is there something about the nature of the speech (advocacy of the overthrow of the government) that favors Sanford’s response?

  3. Whitney v. California – speech & association • California law: • Any person who . . . organizes or assists in organizing , or is or knowingly becomes a member of an organization . . . organized to advocate, teach or aid and abet the commission of crime, sabotage, or unlawful acts of force and violence or unlawful methods of terrorism as a means of . . . effecting any political change . . . is guilty of a felony. • Raises 2 questions re whether one can be criminally punished: • Is the organization's speech punishable? • If so, what degree of involvement with that speech is necessary for a member of the organization to be criminally responsible?

  4. Brandeis’s Whitney concurrence – clear & present danger test • “To justify suppression of free speech . . . there must be reasonable ground to fear that the danger apprehended is imminent. There must be reasonable ground to believe that the evil to be prevented is a serious one.” • Two requirements: • Danger to be prevented must be imminent • No time for counterspeech (p. 51) • There must be a probability of serious substantive evil • Why serious evil required? Because of the value of free speech (pp. 50-51) • What does Brandeis see as that value?

  5. Whitney and freedom of association • California law allowed punishment of anyone who was a member of an organization that advocated criminal syndicalism. • Raises the question: • What degree of involvement with a subversive organization is necessary before one can be criminally guilty for the speech of others in the organization? • What did Anita Whitney do? Why is that enough according to SCT? • Should “knowledge” and “membership” be sufficient for criminal punishment?

  6. Why do we protect association with others for expressive purposes?

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