1. Bill of Rights
Articles 1-7 ratified when New Hampshire, the 9th state, ratified 6/21/1788
Bill of Rights proposed 9/1789 & ratified 12/15/1791
Rights begin with “Congress shall make no law ...” meant that the Framers intended only to limit the power of the federal government. Rights did not apply to the States & federal government could not restrict state laws that limit the Bill of Rights. (Baron v. Baltimore 1833). States free to restrict liberties as saw fit.
4/19/2017

2. 1st Amendment
1st 10 amendments needed to protect us from abuse of federal government power.
“Congress shall make no law respecting establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the gov’t for redress of grievances.”
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3. 1st Amendment Seems to protect against any law
Can one justify murder in the name of religion?
Ruin another’s reputation with lies?
1st Amendment Rights not absolute, but majestic generalities. We must make laws to protect innocent against great harms.
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4. Preferred Position Doctrine
1st Amendment rights are higher rights than any others in the Constitution.
When law that regulates non 1st Amendment rights (such as the 2nd) taken to court ... The court presumes the law is constitutional (legal).
When any law that regulates 1st Amendment rights is taken to court ... it presumes the law unconstitutional ... illegal.
4/19/2017

5. Incorporation by the 14th
The 14th Amendment ratified Provided “... nor shall any State deprive any person of life, liberty, or property without (federal) due process of law.”
View “liberty” as constitutionally protected.
In 1925 U. S. Supreme Court, with the free speech & press case Gitlow v. New York, 1st began to apply (incorporate) most of the Bill of Rights to apply to the States.
4/19/2017

6. Gitlow v. New York
Facts of the Case: Gitlow, a socialist, was arrested for distributing copies of a “manifesto" that called for socialism through strikes and class action of any form” (could be violent like some union strikes).
Convicted under state “criminal anarchy” law, which punished advocating the overthrow of the government by force.
Gitlow argued that since was no illegal action flowing from the manifesto's publication, the statute penalized utterances lacking such.
New York courts decided anyone who advocated the doctrine of violent revolution violated the law.
Threshold issue: Does the First Amendment apply to the states?
Yes. The Supreme Court stated that “the rights of freedom of speech and freedom of the press were "among the fundamental personal rights and 'liberties' protected by the due process clause of the Fourteenth Amendment from impairment by the states.“
Gitlow’s conviction upheld, but NY governor pardoned him because was viewed as a political crime.
4/19/2017