From Gitlow to Near: Judicial “Amendment” by Absent-Minded Incrementalism

On June 8, 1925, the Supreme Court began a major revolution in American constitutional law. Writing for the six-judge majority in Gitlow v. New York, Justice Edward T. Sanford stated: For present purposes we may and do assume that freedom of speech and press—which are protected by the First Amendment from abridgment by Congress—are among the fundamental personal rights and “Liberties” protected by the due process clause of the Fourteenth Amendment from impairment by the States. We do not regard the incidental statement in Prudential Insurance Co. v. Cheek (259 U.S. 530, 534) that the Fourteenth Amendment imposes no restrictions on the States concerning freedom of speech, as determinative of this question.