Post on The Enigma of Gitlow: Positivism, Liberty, Democracy, and Freedom of Speech @YaleLawSch

Robert Post, Yale Law School, has published The Enigma of Gitlow: Positivism, Liberty, Democracy, and Freedom of Speech. Here is the abstract.

Gitlow v. New York held that courts should defer to state legislatures seeking to punish the mere advocacy of revolution. Although this holding was decisively repudiated forty years later in Brandenburg v. Ohio, Gitlow is nevertheless honored today because it was the first case to include freedom of speech in the “liberty” interests protected by the Due Process Clause of the Fourteenth Amendment. Closely examined, Gitlow is a very puzzling decision. Why did the Court bother to include freedom of speech within the ambit of Fourteenth Amendment liberty if its substantive understanding of First Amendment rights was so weak and deferential? Conversely, why did Holmes and Brandeis, who dissented in Gitlow, agree that the “liberty” interests protected by the Due Process Clause should be expanded to include freedom of speech, given that they had heretofore vigorously opposed using the Clause to restrict state legislation? In celebration of Gitlow’s upcoming centennial, this article offers a comprehensive historical reconstruction of its circumstances and decision-making. It seeks to unpack the enigmas that envelop the opinion. The article argues that the majority of the Court chose to expand the scope of the Fourteenth Amendment Due Process Clause to fulfill the promise of Allgeyer v. Louisiana to offer judicial protection to “the right of the citizen to be free in the enjoyment of all his faculties.” The Taft Court was vigorously engaged in the project of reviving Lochner and its elevated judicial scrutiny of social and economic regulation. Strangely, however, the Taft Court in Gitlow counseled strict judicial restraint, which strongly suggests that it cared more about expanding the scope of Fourteenth Amendment “liberty” than about the substantive value of freedom of speech. Holmes was notably reluctant to expand the scope of Fourteenth Amendment liberty, even to protect freedom of speech. The article argues that he changed his mind after 1923 when he came to realize that judicial deference to legislation could be justified only on the assumption that legislatures actually registered “the actual equilibrium of force in the community.” This was not for Holmes a matter of democratic legitimacy, but of the ability of positive law to maintain the authority to serve as an alternative to outright violence. For Holmes, the value of free speech lay less in its connection to “truth” than in its ability to underwrite the judicial positivism that he invented and bequeathed to subsequent generations. Brandeis did not write separately in Gitlow, but he developed at that time an account of free speech that differed fundamentally from that of Holmes. For Brandeis, the “final end” of the state “was to make men free to develop their faculties.” Brandeis believed that the perfection and expression of individual autonomy were essential to human flourishing, that society owed to all persons the conditions that would allow for such flourishing, and that democracy was the only form of government consistent with such flourishing. He therefore interpreted the Constitution, including the Constitution’s protection for freedom of speech, to protect the practices necessary for democracy. The difference between Holmes and Brandeis can plainly be seen in Meyer v. Nebraska, which struck down restrictions on the teaching of foreign language. Holmes dissented in Meyer, but Brandeis, who regarded education as necessary for democracy, joined the Court’s opinion by James McReynolds. Contemporary First Amendment doctrine descends from Brandeis, not from Holmes. But modern representatives of Holmesian positivism, who believe that the law inheres only in facts—whether facts of original public meaning, or of history and tradition, or of past practices—have recently sought to revise First Amendment doctrine to abjure judicial appeals to the “purpose” of protecting essential democratic processes. The recent case of Vidal v. Elster is a good example. Gitlow offers an important lesson for these modern scholars and judges: It illustrates that the great progenitor of American positivism, Oliver Wendell Holmes, Jr., understood full well that positive law itself requires justification. Not even Holmes, the most rigorous practitioner of positivism in the history of American jurisprudence, was prepared to interpret the Fourteenth Amendment Due Process Clause merely in the light of simple facts, whether those of text, or of history, or of traditional legal practices. Holmes instead interpreted the Clause to advance the larger values he perceived at stake in American constitutionalism.

Download the article from SSRN at the link.