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ACLU History: Early Breakthroughs for Free Speech

Document Date: September 1, 2010

Despite the continued resistance of the courts, the ACLU persisted in defending the government’s critics, and in 1925 saw a significant victory in Gitlow v. New York. Although renowned ACLU attorney Walter Pollak failed to reverse activist Benjamin Gitlow’s conviction under New York law for publishing materials advocating revolution, he did manage to convince the Justices that the Due Process Clause of the Fourteenth Amendment requires states to respect the Bill of Rights – in this case, the right to free speech. From this point on, most free speech cases in the Supreme Court dealt with repression by state authorities. Other crucial constitutional rights were subsequently established through this landmark legal precedent as well.

The Gitlow decision, however, did not help Charlotte Anita Whitney, a Communist who was convicted under California’s ‘criminal syndicalism’ law. In 1927, the ACLU represented Whitney before the Supreme Court, which upheld her conviction but resulted in yet another significant opinion – a dissent written by Justice Louis Brandeis, joined by Justice Oliver Wendell Holmes – that is considered one of the most stirring defenses of freedom of speech and a major influence on the future course of First Amendment law. It is fitting that the Justices who rebuked their colleagues’ failure to honor the First Amendment were the ones whose opinions stood the test of time – and ultimately prevailed.

A decade later, the ACLU scored two Supreme Court victories that signaled the court’s evolving views of freedom of speech and civil liberties. In De Jonge v. Oregon, ACLU attorney Osmond Fraenkel argued on behalf of Dirk De Jonge, who had been convicted under Oregon’s Criminal Syndicalism law for the ‘offense’ of organizing a public meeting of the Communist Party. The Court held that De Jonge’s Communist affiliation was not sufficient grounds for restricting his rights to free speech and assembly.

A few months later, in Herndon v. Lowry, the Justices overturned the conviction of Angelo Herndon, affirming his rights to freedom of speech and assembly. Herndon, an African-American and member of the Communist Party, had been convicted under a Georgia law for ‘inciting insurrection.’ As ACLU attorney Whitney North Seymour argued before the Court, Herndon’s only ‘crime’ was to distribute pamphlets on economic justice and racial equality and attempt to organize public meetings.

With these two cases, the national security rationale for suppressing free speech rights began to give way to a new respect for – and defense of – the First Amendment.

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RESOURCES

» Supreme Court Decision in Whitney v. California (caselaw.lp.findlaw.com)
» Supreme Court Decision in Herndon v. Lowry (caselaw.lp.com)

» Gitlow v. New York (wikipedia.org)
» De Jonge v. Oregon (wikipedia.org)

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