Incorporation Doctrine and Free Speech

The First Amendment explicitly protects speech and press from federal government abridgement, but only in 1925, in Gitlow v. New York, 268 U.S. 652 (1925), did the Supreme Court find a way to provide federal protection when a state abridges expression. The key was ‘‘incorporation,’’ a new interpretation of Fourteenth Amendment language prohibiting states from depriving ‘‘any person of life, liberty, or property, without due process of law.’’

Benjamin Gitlow had been convicted of violating New York’s criminal anarchy statute by calling for violent overthrow of the government. The Court upheld Gitlow’s conviction, but also declared that ‘‘[f]or present purposes we may and do assume that freedom of speech and of the press ... are among the fundamental personal rights and ‘liberties’ protected by the due process clause of the Fourteenth Amendment from impairment by the States’’ (p. 666). In other words, the Court interpreted the word ‘‘liberty’’ to include freedom of expression and thus ‘‘incorporated’’ protection of speech and press into the Fourteenth Amendment.

Two years later, in Fiske v. Kansas, 274 U.S. 380 (1927), the Court used the Fourteenth Amendment to overturn a state conviction for criminal syndicalism. In 1931, in Near v. Minnesota, 283 U.S. 697 (1931), the Court declared, ‘‘It is no longer open to doubt that the liberty of the press and of speech is within the liberty safeguarded by the due process clause of the Fourteenth Amendment from invasion by state action’’ (p. 707). Without incorporation, many of the most significant free expression cases of the past seventy-five years would never have reached the Court.

ROBERT E. DRECHSEL

Cases and Statutes Cited

• Fiske v. Kansas, 274 U.S. 380 (1927)
• Gitlow v. New York, 268 U.S. 652 (1925)
• Near v. Minnesota, 283 U.S. 697 (1931)

See also Fourteenth Amendment; Gitlow v. New York, 268 U.S. 652 (1925); Near v. Minnesota, 283 U.S. 697 (1931)