Freedom of Speech and States’ Rights

Abstract

In Gilbert v. Minnesota (1920) 41 Sup. Ct. 125, the question of freedom of speech was presented to the federal Supreme Court from a new angle. The issue was the constitutionality of a state statute making unlawful any advocacy against enlistment in the federal military or naval forces or against aiding the United States in the prosecution of war. This question is of great importance, in view of the number and drastic character of state sedition laws passed as a result of the World War, many of them after the Armistice.' It raises primarily the issue of conflicting state and federal powers. The issue of freedom of speech was, however, directly raised, since Justice Brandeis, dissenting, held that freedom of speech was a "privilege or immunity" of a United States citizen within the terms of the constitutional protection, and was also a "liberty" of which a citizen cannot be deprived without due process of law. The majority did not decide the point further than to hold that Gilbert's conviction would not violate such constitutional guarantees.of freedom of speech if they existed. The opinion betrays no small trace of war emotion.