What really happened was the incorporation of the First Amendment of the Bill of Rights into the Fourteenth Amendment to the Constitution, in the cases of Gitlow v. New York, 268 U.S. 652, 666 (1925) and Near v. Minnesota, 283 U.S. 697, 707 (1931). Prior to these cases, it was well-established that the First Amendment did not apply to the states. I assume you are aware that the Bill of Rights, when it was adopted, was a limitation on federal power, not state power.
When the Fourteenth Amendment was adopted after the Civil War, it specifically acted as a limitation on state power. The most significant story of the 20th century, with respect to the United States Supreme Court, was a series of decisions "incorporating" the various guarantees of the Bill of Rights into the "due process clause" of the Fourteenth Amendment, e.g., the Fifth Amendment right not to incriminate oneself, the Fourth Amendment right to be free from unreasonable searches and seizures, the Sixth Amendment right to counsel, and the First Amendment guarantees of free speech, were all held to apply not only to the federal government, but to state governments in the 20th century.
Sitting Supreme Court justices like Scalia would reverse these decisions, and the outspoken criticism of these decisions is one reason why Judge Bork was not confirmed by the Senate. It's no coincidence that one of the decisions most hated by these legal scholars is Roe v. Wade. |
