Which Supreme Court case incorporated freedom of speech?

Quick answer: Which Supreme Court case first incorporated freedom of speech?

Short, direct conclusion, free speech supreme court cases

The short answer is Gitlow v. New York, decided by the Supreme Court in 1925, which is widely cited as the first decision to hold that the First Amendment’s freedom of speech applies to the states through the Fourteenth Amendment’s Due Process Clause. Gitlow v. New York opinion and the National Constitution Center’s case library has a useful summary of the decision: Gitlow v. New York (Constitution Center)

That ruling is best understood as the opening move in a long constitutional process, because the Court in Gitlow also upheld Benjamin Gitlow’s conviction under the then-applicable bad tendency test, which limited the decision’s immediate practical protection for speech. Gitlow v. New York summary

Gitlow v. New York – the facts, the holding and what the Court actually said

Benjamin Gitlow was prosecuted under a New York criminal statute after publishing a document that the state characterized as promoting the overthrow of the government. The Supreme Court reviewed the case in 1925 and described how state action could be subject to protections in the First Amendment, while simultaneously upholding the conviction. Gitlow v. New York opinion and the case text is also available at Teaching American History: Gitlow v. New York (Teaching American History)

The Court’s majority expressly assumed that freedom of speech and of the press are protected against state action through the Fourteenth Amendment’s Due Process Clause, language that later legal scholars and courts treat as the start of selective incorporation. The opinion’s text frames incorporation as a constitutional mechanism rather than as a full statement of modern speech protections. Gitlow v. New York summary

At the same time, the Court applied the bad tendency test to affirm the conviction, a restrictive standard that permitted suppression of speech that might have a tendency to produce unlawful action. Contemporary case notes and summaries emphasize this tension between the Court’s incorporation language and its decision to sustain the conviction. Gitlow overview and summary

How selective incorporation works and why Gitlow matters

Selective incorporation is the legal process by which the Supreme Court, case by case, has applied specific protections in the Bill of Rights to state and local governments through the Fourteenth Amendment. Encyclopedic overviews explain that incorporation is incremental and doctrinally selective, not automatic for every right. See the site’s constitutional rights hub and general overviews like Incorporation doctrine overview

Gitlow is widely treated as the first step in this process for speech because the Court explicitly considered the First Amendment in relation to state action, thereby opening the door for later decisions to apply and refine those protections at the state level. Gitlow v. New York opinion

That stepwise, case-by-case model helps explain why a single opinion can be historic in principle yet limited in effect until subsequent rulings develop standards and exceptions.

Early follow-up: Near v. Minnesota and incorporation of related protections

Near v. Minnesota, decided in 1931, is commonly cited as the case that applied a similar incorporation approach to freedom of the press by disallowing broad prior restraint by state authorities. The Court’s reasoning in Near complemented the doctrinal opening that Gitlow created for press protections. Near v. Minnesota opinion

Near and Gitlow together illustrate the incremental path of incorporation, where the Court recognized that certain expressive rights in the Bill of Rights can restrict state action while leaving finer doctrinal rules to later decisions.

Later decisions that reshaped speech protections: Sullivan and Brandenburg

New York Times Co. v. Sullivan, decided in 1964, substantially changed the law of libel and increased protection for critical political speech by requiring that public officials prove actual malice to succeed in defamation claims. This decision materially strengthened First Amendment safeguards compared to earlier, narrower tests. Brandenburg v. Ohio opinion and related doctrine

Brandenburg v. Ohio, decided in 1969, established the imminent lawless action test for incitement, replacing broader standards that permitted suppression of speech on the basis of remote tendencies. Together, Sullivan and Brandenburg reflect later doctrinal refinements that made speech protections more robust than the bad tendency approach used in Gitlow.

Why Gitlow upheld the conviction – the bad tendency test explained

Later decisions rejected or narrowed the bad tendency approach in favor of tests requiring imminent or specific intent to cause illegal action, a doctrinal shift most clearly seen in the Brandenburg formulation. Those later standards are now the touchstones courts use when they evaluate incitement and similar categories of speech. Brandenburg v. Ohio opinion

Practical implications for states and modern cases

What matters practically is that Gitlow supplied the constitutional mechanism, selective incorporation, that allows most First Amendment constraints to bind state and local governments; courts today treat incorporation as the vehicle that brings many federal speech protections to bear against state action. Gitlow v. New York opinion

Later rulings expanded and clarified protected speech categories at the state level, including libel protections and incitement standards, which means that state laws are evaluated under these more protective tests rather than the early bad tendency approach. Brandenburg v. Ohio opinion

For voters and local officials, the practical takeaway is that while Gitlow established the selective incorporation path, the contemporary limits on state regulation of speech are shaped by later precedent and by how courts apply those precedents in modern contexts.

How this history matters for speech in digital platforms and new contexts

Court doctrine developed through incorporation guides how state regulation is reviewed, but open questions remain about private platforms and new technologies because the First Amendment constrains government actors rather than private companies. Encyclopedic overviews and case law together show that incorporation sets the baseline for state action while leaving complex technology questions to evolving judicial interpretation. Incorporation doctrine overview

Because the incorporation framework and later precedents like Brandenburg inform modern review, courts typically apply those doctrinal principles to novel contexts, but those applications are often fact-specific and can raise unresolved issues about the right balance between regulation and expressive freedom. For more on digital contexts see First Amendment explained and discussions of freedom of expression and social media on the site.

Common misconceptions and pitfalls when people ask about incorporation

A common myth is that a single case immediately made the First Amendment apply to the states. In reality, Gitlow began the process but did not complete it, and later decisions developed the substance of modern protections. Gitlow v. New York summary

Another mistake is to treat Gitlow as equivalent to modern tests like imminent lawless action. Gitlow used the bad tendency standard, which is not the same as the Brandenburg test that governs modern incitement analysis.

How to read and cite the primary decisions and trusted summaries

Primary decisions can be read in full on public legal databases; for Gitlow consult the official opinion text and for helpful summaries consult reputable secondary sources that explain context. The Justia and Legal Information Institute pages provide full opinions and annotated text for study. Gitlow v. New York opinion and the Library of Congress has a scanned opinion PDF: Gitlow opinion (LOC)

When citing cases in nonlegal writing, a simple format is usually sufficient: case name, reporter citation, and year, followed by a link to the opinion when available. For background and doctrinal overview, encyclopedia entries can give concise explanations of incorporation and its limits. Incorporation doctrine overview

A compact timeline: key incorporation moments for speech and press

1925, Gitlow v. New York – Court recognized that First Amendment speech protections apply against the states via the Fourteenth Amendment, while upholding Gitlow’s conviction under a bad tendency test. Gitlow v. New York opinion

1931, Near v. Minnesota – Court applied similar incorporation logic to freedom of the press, disfavoring broad prior restraints by state authorities. Near v. Minnesota opinion

1964, New York Times Co. v. Sullivan and 1969, Brandenburg v. Ohio – Later milestones that refined libel, political speech protections, and incitement standards, making speech doctrine more protective than earlier tests. Brandenburg v. Ohio opinion

Classroom and exam-style example questions to test understanding

Essay prompt: Explain why Gitlow is credited with incorporating the First Amendment’s speech protections against the states, and how later cases changed the practical protection available. Model answer, one paragraph: Gitlow is credited because the Court in 1925 explicitly treated freedom of speech as protected against state action through the Fourteenth Amendment, inaugurating the selective incorporation approach; however, the opinion also affirmed Gitlow’s conviction under the bad tendency test, and subsequent rulings such as Near, Sullivan, and Brandenburg developed more protective standards that defined the modern scope of First Amendment protections. Gitlow v. New York opinion

Multiple-choice sample: Which test eventually replaced the bad tendency standard for incitement analysis? A: Bad tendency B: Clear and present danger C: Imminent lawless action D: Strict scrutiny. Correct answer: C, imminent lawless action, as articulated in Brandenburg. Brandenburg v. Ohio opinion

Concluding key takeaways and further reading

1) Gitlow v. New York, 1925, is widely cited as the canonical first step that applied the First Amendment’s speech protections to the states via selective incorporation, but the Court in Gitlow still upheld the conviction under a restrictive test. Gitlow v. New York opinion

2) Later cases, including Near for the press and decisions like New York Times Co. v. Sullivan and Brandenburg, substantially refined speech protections and remain central to modern doctrine. Near v. Minnesota opinion

3) For readers seeking primary sources, consult the full opinions and reputable summaries such as the Legal Information Institute and encyclopedic overviews to verify language and doctrinal context. Incorporation doctrine overview