Is the 1st Amendment Free Speech Clause is applicable to the states through the 14th Amendment’s Due Process Clause?
Argued that New York could not show that any harm had occurred from his exercise of freedom of speech and press, and that the Constitution protected his speech unless it presented a "clear and present danger" to society.
The Fourteenth Amendment prohibits states from infringing free speech, but the defendant was properly convicted under New York's Criminal Anarchy Law because he disseminated newspapers that advocated the violent overthrow of the government.
In an opinion authored by Justice Edward Sanford, the Court concluded that New York could prohibit advocating violent efforts to overthrow the government under the Criminal Anarchy Law.
Gitlow had not violated the clear and present danger test used in Schenck. Since Gitlow's call to action was abstract and would not resonate with a large number of people, Holmes concluded that there was not sufficient imminence to warrant punishing the speech