The next major First Amendment case was Gitlow v. New York, another 7-2 decision. This one upheld the conviction of a group of radical Socialists (for all intents and purposes, Communists) for publishing a Manifesto calling for violent revolution, although it did not incite any actual violence. This time the defendants were prosecuted, not under the federal Espionage and Sedition Acts, but under a New York statute against "criminal anarchy," which banned calling for the violent overthrow of the government or other calls for political violence. The opinion made quite clear that advocating a socialist program through elections or other peaceful means was lawful; the only question was advocacy of political violence. The defendants appealed on the grounds that the state statute violated the Fourteenth Amendment guaranty that no one could be "deprived of liberty . . . without due process of law," and argued that "liberty" under the Fourteenth Amendment included freedom of the press. In other words, the Fourteenth Amendment incorporated the First. The Supreme Court said that:
For present purposes we may and do assume that freedom of speech and of the 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.Significantly, they did not actually decide but merely "assumed" that the Fourteenth Amendment incorporated the First. But they did expressly repudiate an earlier opinion denying that the Fourteenth Amendment protected freedom of speech and the press from the states. This was an important piece of jurisprudence -- the First Amendment had never before been held to apply against the states. It went on to say, however, that freedom of speech did not protect "utterances inimical to the public welfare, tending to corrupt public morals, incite to crime, or disturb the public peace," and therefore upheld the conviction, saying that the state had even stronger authority to punish calls for violent revolution. This point was emphasized several times over. It further held that so long as the statute is constitutional and the publication violates it, it does not matter whether any actual violence was incited or not. Holmes and Brandeis once again dissented, again citing the "clear and present danger" doctrine and applying it to the states as well as the federal government. Holmes also suggested that if the manifesto had been written to induce an immediate uprising, even if it did not incite any violence, his decision might have been otherwise. The Wikipedia, incidentally, says that Gitlow is also significant as the first major First Amendment case that the ACLU argued before the Supreme Court, and that (a sign of changing times), the Governor of New York pardoned the defendant shortly after the Supreme Court made its decision.
Two years later came the case of Whitney v. California. This time, the defendant was a Communist prosecuted under California's "criminal syndicalism" statute banning advocacy of violent revolution or membership in an organization advocating violent revolution. Once again, the Court held that California's "criminal syndicalism" statute did not violate First Amendment guarantees of freedom of speech, the press, and association, although this time they appear to have taken for granted that the First Amendment applied to state as well as federal governments:
The essence of the offense denounced by the Act is the combining with others in an association for the accomplishment of the desired ends through the advocacy and use of criminal and unlawful methods. It partakes of the nature of a criminal conspiracy. [Cite]. That such united and joint action involves even greater danger to the public peace and security than the isolated utterances and acts of individuals is clear.
Brandeis and Holmes wrote a "concurrence" that sounded very much like a dissent:
There is guilt although the society may not contemplate immediate promulgation of the doctrine. Thus the accused is to be punished, not for attempt, incitement or conspiracy, but for a step in preparation, which, if it threatens the public order at all, does so only remotely. The novelty in the prohibition introduced is that the statute aims, not at the practice of criminal syndicalism, nor even directly at the preaching of it, but at association with those who propose to preach it.
Brandeis once again argued the "clear and imminent danger" and,while he said that a state could ban speech that caused a "clear and present danger" of imminent lawlessness, the actual danger had to be established to allow a conviction. Since "clear and present danger" had not been defined, he attempted to define it;
In order to support a finding of clear and present danger it must be shown either that immediate serious violence was to be expected or was advocated, or that the past conduct furnished reason to believe that such advocacy was then contemplated.He nonetheless agreed with the conviction because, although forming a political party dedicated to revolution at some remote date in the future was not a crime, he believed there was sufficient evidence of actual criminal conspiracy that conviction might be justified.