Gitlow v. New York

268 U.S. 652 (1925), argued 12 Apr. 1923, reargued 23 Nov. 1923, decided 8 June 1925 by vote of 7 to 2; Sanford for the Court, Holmes and Brandeis in dissent. The landmark Gitlow case marks the beginning of the “incorporation” of the First Amendment as a limitation on the states. This process, which continued selectively over the next fifty years, resulted in major changes in the modern law of civil liberties, affording citizens a federal remedy if the states deprived them of their fundamental rights. Ironically, however, the Court rejected Gitlow's free speech claim. At the time, the ruling's significance was largely doctrinal.

Benjamin Gitlow was a member of the left‐wing section of the Socialist party. He was convicted for violating the New York Criminal Anarchy Law of 1902, which made it a crime to advocate the violent overthrow of the government. Specifically, he had been arrested during the 1920 red scare for writing, publishing and distributing sixteen thousand copies of a pamphlet called Left‐wing Manifesto that urged the establishment of socialism by strikes and “class action … in any form.” He was also charged with being an “evil disposed and pernicious person,” with a “wicked and turbulent disposition,” who tried to “excite discontent and disaffection.” At his trial, the famed attorney Clarence Darrow sought to frame the entire issue as one of freedom of speech on the grounds that the Left‐wing Manifesto advocated nothing but urged abstract doctrine. The New York court, however, ruled that Communists had to be held responsible for the potential danger of their abstract concepts and upheld the conviction.

The Supreme Court used the case as an occasion to examine the concept that the speech and press protections of the First Amendment should be extended to the states. Gitlow's brief, prepared by the brilliant ACLU lawyer Walter H. Pollak, argued persuasively that liberty of expression was a right to be protected against state abridgment. This, he contended, was established by the authoritative determination of the meaning of liberty as used in the Fourteenth Amendment and by implicit declarations with respect to the related right of free assembly. The Court was impressed. Justice Edward T. Sanford, speaking for the majority, agreed that “for present purposes, we may and do assume that freedom of speech and of the press … are among the fundamental personal rights and ‘liberties’ protected by the due process clause of the Fourteenth Amendment from impairment by the States” (p. 666). He nonetheless sustained the New York law and upheld Gitlow's conviction. “[A] state may punish utterances endangering the foundations of organized government and threatening its overthrow by unlawful means,” Sanford wrote (p. 667). Gitlow's pamphlet, while not immediately inciting criminal action, could be viewed as a “revolutionary spark” that might at some later time burst into “sweeping and destructive conflagration” (p. 669).

Justice Oliver Wendell Holmes wrote a famous dissent in which Justice Louis D. Brandeis concurred. He disagreed with the majority's ruling that words separated from action could be punished. Holmes declared, “The only difference between the expression of an opinion and an incitement in the narrower sense is the speaker's enthusiasm for the result. Eloquence may set fire to reason. But whatever may be thought of the redundant discourse before us, it had no chance of starting a present conflagration” (p. 673). This view, which called for punishment of action, not expression, under the clear and present danger doctrine, was to be embraced by the Supreme Court in the 1960s.

The Gitlow decision launched “incorporation” of the First Amendment. It was not until Stromberg v. California (1931), however, that the Court actually ruled a state law unconstitutional on First Amendment free speech grounds.

See also Incorporation Doctrine; Speech and the Press.

— Paul L. Murphy

• 268 U.S. 652 (1925)
• Vote: 7–2
• For the Court: Sanford
• Dissenting: Holmes and Brandeis

Benjamin Gitlow was a member of the Communist Labor Party of the United States, organized in 1919. He participated in the writing and distribution of a pamphlet published by his party called the Left Wing Manifesto. This pamphlet urged the people of the United States to rise up and overthrow their government and bring about a communist revolution. Gitlow was arrested and convicted for violating New York's Criminal Anarchy Law, which made it a crime to advocate violent revolution against the government.

The Issue

Gitlow claimed the Criminal Anarchy Law was unconstitutional because it violated his constitutional rights to free speech and press. The 14th Amendment says that a state government cannot deprive a person of liberty without due process of law. Furthermore, Gitlow's lawyers argued that the due process clause of the 14th Amendment could be used to extend 1st Amendment rights of free speech and press to the states. Did New York's Criminal Anarchy Law deprive Gitlow of his constitutional rights to freedom of expression? Could the 14th Amendment's due process clause be used to hold state governments to the free speech and press standards of the 1st Amendment?

Opinion of the Court

The Supreme Court upheld Gitlow's conviction and concluded that the Criminal Anarchy Law was constitutional. Justice Edward T. Sanford wrote, “[A] state may punish utterances endangering the foundations of organized government and threatening its overthrow by unlawful means.” He concluded that Gitlow's pamphlet was not a mere discussion of ideas. Rather, it was “the language of direct incitement” to violent revolution.

The Court, agreed, however, that 1st Amendment free speech and press rights could be applied to the states through the 14th Amendment. Justice Sanford wrote that “for present purposes we may and do assume that freedom of speech and of the press—which are protected by the First Amendment from abridgement by Congress—are among the fundamental personal rights and liberties protected by the due process clause of the Fourteenth Amendment from impairment by the states.”

Dissent Justice Oliver Wendell Holmes, with Justice Louis Brandeis concurring, disagreed with the Court's decision to uphold the conviction of Gitlow. Holmes argued that the mere expression of ideas, separated from action, could not be punished under the “clear and present danger” doctrine that he had defined in Schenck v. United States and modified in his dissent in Abrams v. United States (both 1919). In his Gitlow dissent, Holmes followed his line of reasoning in Abrams, in which he stated that unless speech could be linked clearly with immediate violent and unlawful action, it should be permitted. Holmes said, “Every idea is an incitement. It offers itself for belief and, if believed it is acted on unless some other belief outweighs it.” Further, Holmes said that there was no evidence that Gitlow's pamphlet was likely to incite violent revolution and that it posed only a remote threat to social order. Holmes and Brandeis agreed strongly with the Court's conclusion that the 1st Amendment should apply to the states.

Significance

This case was the foundation for the incorporation of the 1st Amendment under the due process clause of the 14th Amendment in order to limit the states' power to restrict the free speech and press rights of individuals. The incorporation doctrine has been used gradually to apply most of the federal Bill of Rights to the states. Furthermore, beginning in the 1960s the Court rejected the narrow interpretation of free speech expressed by Justice Sanford in this case. The broader interpretation of free speech, expressed by Justice Holmes in dissent, has become the prevailing position of the Court. Thus the Gitlow case is important because it provided a foundation for the future expansion of free speech and press rights of individuals.

See also Abrams v. United States; Freedom of speech and press; Incorporation doctrine; Schenck v. United States

Gitlow v. New York, 268 U.S. 652, 45 S. Ct. 625, 69 L. Ed. 1138, is a 1925 decision by the Supreme Court that upheld the constitutionality of criminal anarchy statutes.

The defendant, Benjamin Gitlow, was a member of the Left Wing Section of the Socialist party, a splinter group of that party formed in opposition to its dominant policy of "moderate socialism." This section criticized the mainstream of the party for its acknowledgment of the necessity of the democratic parliamentary state and its insistence on introducing socialism through the legislative process. The Left Wing Section clearly advocated the necessity of effectuating a Communist revolution by a militant and revolutionary socialism based on the class struggle. It viewed mass industrial revolts as the mechanism by which the parliamentary state would be destroyed and replaced by a system of Communist socialism.

Gitlow was responsible for the publication of these views in writings titled "The Left Wing Manifesto." The "Manifesto" was then published in The Revolutionary Age, the official paper of the Left Wing. The opinions expressed in these publications formed the bases for the defendant's convictions under Sections 160 and 161 of the penal law of New York, which were the criminal anarchy statutes.

Section 160 defined criminal anarchy and prescribed that the verbal or written advocacy of the doctrine be treated as a felony. Section 161 delineated the conduct that constituted the crime of advocacy of criminal anarchy and stated that its punishment be imprisonment, a fine, or both. The proscribed conduct consisted of the verbal or written advertisement or teaching of the duty, necessity, or propriety of overthrowing organized government by violence, assassination, or other unlawful acts. A person was also prohibited from publishing, editing, knowingly circulating, or publicly displaying any writing embodying this doctrine.

There was a two-count indictment against Gitlow. The first charged that the defendant had advocated, advised, and taught the duty, necessity, and propriety of unlawfully overthrowing organized government through the writings titled "The Left Wing Manifesto." The second count charged that he had printed, published, knowingly circulated, and distributed The Revolutionary Age, containing the writings set forth in the first count advocating the doctrine of criminal anarchy.

There was no evidence of any effect ensuing from the publication and circulation of the "Manifesto."

In sustaining the defendant's conviction, the Court assumed that the Due Process Clause of the Fourteenth Amendment prevented the states from impairing the freedoms guaranteed by the First Amendment. It thereby departed from its previous position that the Due Process Clause of the Fourteenth Amendment did not apply the guarantees of the Bill of Rights to the states. The Court held, however, that the statutes, as applied in this case, did not deprive the defendant of freedom of expression in violation of the Due Process Clause of the Fourteenth Amendment.

The Court noted that the statutes did not penalize the utterance or publication of abstract doctrine or academic theory having no propensity to incite concrete action. It found that what was proscribed was language advocating, advising, or teaching the overthrow of organized government by unlawful means, and that such language implied an urging to action. The Court held that the "Manifesto" was neither the expression of philosophical abstraction nor the mere prediction of future events; it was the language of direct incitement.

The Court reasoned that the means advocated for engendering the destruction of organized government—mass industrial uprisings, political mass strikes, and revolutionary mass action—necessarily implies the use of force and violence and are inherently unlawful in a democratic system of government. It ruled that freedom of expression does not grant an absolute right to speak or publish, without responsibility, whatever one wishes or an unqualified immunity from punishment for every possible utterance or publication. The state, in the exercise of its police power, can indisputably punish those who abuse the freedom of speech and press by utterances adverse to the public welfare, tending to corrupt public morals, incite to crime, or breach the public peace. In furtherance of its primary and essential right of self-preservation, a state can penalize expression imperiling the foundations of organized government and threatening its overthrow by unlawful means.

The Court also ruled that great deference must be accorded to the determination by the state that utterances advocating the overthrow of organized government by unlawful means are so opposed to the general welfare and involve such danger of substantive evil that they can be penalized in the exercise of its police power. Such police statutes can only be declared unconstitutional if they are arbitrary or unreasonable. In addition, the Court noted that the immediate danger is not diminished because the effect of a particular utterance cannot be precisely foreseen. It indicated that the state need not defer the enactment of protective measures until there is immediate danger of its destruction; it can quash the peril at its onset.

The Court also stated that when the state has ascertained that utterances of a certain type entail such danger of substantive evil that they can be punished, the issue of whether any particular utterance within the ambit of the prohibited class is likely, in and of itself, to bring about the substantive evil, is not subject to consideration. It is sufficient that the statute itself is constitutional and that the use of the language comes within its prohibition.

Additionally, the Court ruled that the general, broad "clear and present danger" test as used in other cases was inapplicable to cases such as Gitlow, where the legislature itself has previously determined the danger of substantive evil arising from specified utterances.

In subsequent cases (for example, Brandenburg v. Ohio, 395 U.S. 444, 89 S. Ct. 1827, 23 L. Ed. 2d 430 [1969]; Hess v. Indiana, 414 U.S. 105, 94 S. Ct. 326, 30 L. Ed. 2d 303 [1973]), the Court rejected the doctrine it formulated in Gitlow that incitement to action is implicit in mere advocacy of unlawful acts. The Court subsequently held that freedom of expression does not allow a state to prohibit advocacy of resort to force or unlawful acts except where such advocacy is directed to inciting imminent lawless action and is likely to incite such action.

See: Anarchism; Communism; Due Process of Law; Incorporation Doctrine.

by E. T. Sanford and O. W. Holmes, Jr., 1925

The important case of Gitlow v. New York originated at the height of the "Red scare" of 1919-1920. Benjamin Gitlow was convicted under New York's Criminal Anarchy statute and appealed to the Supreme Court. His conviction was upheld; but both Justice Edward Sanford's opinion for the majority and Justice Oliver Wendell Holmes, Jr.'s, dissent had far-reaching effects. The two justices agreed that the Fourteenth Amendment forbade a state from impairing rights guaranteed under the First Amendment to the Constitution, but Sanford thought that Gitlow's provocative publication had been more inflammatory than the law allowed. In dissent, Justice Holmes invoked the "clear and present danger" doctrine established in 1919 in Schenck v. United States as the standard to be used in determining the constitutionality of any abridgment of freedom of speech. This interpretation has since come to prevail. Parts of the two opinions of June 8, 1925, are reprinted here.

Mr. Justice Sanford. Benjamin Gitlow was indicted in the Supreme Court of New York, with three others, for the statutory crime of criminal anarchy. ... He was separately tried, convicted, and sentenced to imprisonment. The judgment was affirmed by the Appellate Division and by the Court of Appeals. ... The case is here on writ of error to the Supreme Court, to which the record was remitted. ...

The contention here is that the statute, by its terms and as applied in this case, is repugnant to the due process clause of the Fourteenth Amendment. Its material provisions are:

Section 160. Criminal anarchy defined. Criminal anarchy is the doctrine that organized government should be overthrown by force or violence, or by assassination of the executive head or of any of the executive officials of government, or by any unlawful means. The advocacy of such doctrine either by word of mouth or writing is a felony.

Section 161. Advocacy of criminal anarchy. Any person who:

• By word of mouth or writing advocates, advises, or teaches the duty, necessity, or propriety of overthrowing or overturning organized government by force or violence, or by assassination of the executive head or of any of the executive officials of government, or by any unlawful means; or,

• Prints, publishes, edits, issues, or knowingly circulates, sells, distributes, or publicly displays any book, paper, document, or written or printed matter in any form containing or advocating, advising, or teaching the doctrine that organized government should be overthrown by force, violence, or any unlawful means ... is guilty of a felony and punishable by imprisonment or fine, or both.

The indictment was in two counts. The first charged that the defendant had advocated, advised, and taught the duty, necessity, and propriety of overthrowing and overturning organized government by force, violence, and unlawful means, by certain writings therein set forth entitled "The Left Wing Manifesto"; the second, that he had printed, published, and knowingly circulated and distributed a certain paper called The Revolutionary Age, containing the writings set forth in the first count advocating, advising, and teaching the doctrine that organized government should be overthrown by force, violence, and unlawful means.

The following facts were established on the trial by undisputed evidence and admissions: The defendant is a member of the Left Wing Section of the Socialist Party, a dissenting branch or faction of that party formed in opposition to its dominant policy of "modern Socialism." Membership in both is open to aliens as well as citizens. The Left Wing Section was organized nationally at a conference in New York City in June 1919, attended by ninety delegates from twenty different states. The conference elected a National Council, of which the defendant was a member, and left to it the adoption of a "Manifesto." This was published in The Revolutionary Age, the official organ of the Left Wing.

The defendant was on the Board of Managers of the paper and was its business manager. He arranged for the printing of the paper and took to the printer the manuscript of the first issue which contained the Left Wing Manifesto, and also a Communist Program and a Program of the Left Wing that had been adopted by the conference. Sixteen thousand copies were printed, which were delivered at the premises in New York City used as the office of the Revolutionary Age and the headquarters of the Left Wing, and occupied by the defendant and other officials. These copies were paid for by the defendant as business manager of the paper. Employees at this office wrapped and mailed out copies of the paper under the defendant's direction; and copies were sold from this office.

It was admitted that the defendant signed a card subscribing to the Manifesto and Program of the Left Wing, which all applicants were required to sign before being admitted to membership; that he went to different parts of the state to speak to branches of the Socialist Party about the principles of the Left Wing and advocated their adoption; and that he was responsible for the Manifesto as it appeared, that "he knew of the publication, in a general way and he knew of its publication afterwards, and is responsible for its circulation."

There was no evidence of any effect resulting from the publication and circulation of the Manifesto. No witnesses were offered in behalf of the defendant. ...

Coupled with a review of the rise of Socialism, [the Manifesto] condemned the dominant "moderate Socialism" for its recognition of the necessity of the democratic parliamentary state; repudiated its policy of introducing Socialism by legislative measures; and advocated, in plain and unequivocal language, the necessity of accomplishing the "Communist Revolution" by a militant and "revolutionary Socialism" based on "the class struggle" and mobilizing the "power of the proletariat in action" through mass industrial revolts developing into mass political strikes and "revolutionary mass action" for the purpose of conquering and destroying the parliamentary state and establishing in its place, through a "revolutionary dictatorship of the proletariat," the system of Communist Socialism. The then recent strikes in Seattle and Winnipeg were cited as instances of a development already verging on revolutionary action and suggestive of proletarian dictatorship in which the strike workers were "trying to usurp the functions of municipal government"; and revolutionary Socialism, it was urged, must use these mass industrial revolts to broaden the strike, make it general and militant, and develop it into mass political strikes and revolutionary mass action for the annihilation of the parliamentary state.

At the outset of the trial the defendant's counsel objected to the introduction of any evidence under the indictment on the grounds that, as a matter of law, the Manifesto "is not in contravention of the statute," and that "the statute is in contravention of" the due process clause of the Fourteenth Amendment. This objection was denied. They also moved, at the close of the evidence, to dismiss the indictment and direct an acquittal "on the grounds stated in the first objection to evidence," and again on the grounds that "the indictment does not charge an offense" and the evidence "does not show an offense." These motions were also denied.

The court, among other things, charged the jury, in substance, that they must determine what was the intent, purpose, and fair meaning of the Manifesto; that its words must be taken in their ordinary meaning, as they would be understood by people whom it might reach; that a mere statement or analysis of social and economic facts and historical incidents, in the nature of an essay, accompanied by prophecy as to the future course of events, but with no teaching, advice, or advocacy of action, would not constitute the advocacy, advice, or teaching of a doctrine for the overthrow of government within the meaning of the statute; that a mere statement that unlawful acts might accomplish such a purpose would be insufficient unless there was a teaching, advising, and advocacy of employing such unlawful acts for the purpose of overthrowing government; and that if the jury had a reasonable doubt that the Manifesto did teach, advocate, or advise the duty, necessity, or propriety of using unlawful means for the overthrowing of organized government, the defendant was entitled to an acquittal.

The defendant's counsel submitted two requests to charge which embodied in substance the statement that to constitute criminal anarchy within the meaning of the statute it was necessary that the language used or published should advocate, teach, or advise the duty, necessity, or propriety of doing "some definite or immediate act or acts" of force, violence, or unlawfulness directed toward the overthrowing of organized government. These were denied further than had been charged. Two other requests to charge embodied in substance the statement that to constitute guilt the language used or published must be "reasonably and ordinarily calculated to incite certain persons" to acts of force, violence, or unlawfulness, with the object of overthrowing organized government. These were also denied. ... Both the Appellate Division and the Court of Appeals held the statute constitutional. ...

The correctness of the verdict is not questioned, as the case was submitted to the jury. The sole contention here is, essentially, that as there was no evidence of any concrete result flowing from the publication of the Manifesto or of circumstances showing the likelihood of such result, the statute as construed and applied by the trial court penalizes the mere utterance, as such, of "doctrine" having no quality of incitement, without regard either to the circumstances of its utterance or to the likelihood of unlawful sequences; and that, as the exercise of the right of free expression with relation to government is only punishable "in circumstances involving likelihood of substantive evil," the statute contravenes the due process clause of the Fourteenth Amendment.

The argument in support of this contention rests primarily upon the following propositions: (1) that the "liberty" protected by the Fourteenth Amendment includes the liberty of speech and of the press; and (2) that while liberty of expression "is not absolute," it may be restrained "only in circumstances where its exercise bears a causal relation with some substantive evil, consummated, attempted, or likely," and as the statute "takes no account of circumstances," it unduly restrains this liberty and is therefore unconstitutional.

The precise question presented, and the only question which we can consider under this writ of error, then, is whether the statute, as construed and applied in this case by the state courts, deprived the defendant of his liberty of expression in violation of the due process clause of the Fourteenth Amendment.

The statute does not penalize the utterance or publication of abstract "doctrine" or academic discussion having no quality of incitement to any concrete action. It is not aimed against mere historical or philosophical essays. It does not restrain the advocacy of changes in the form of government by constitutional and lawful means. What it prohibits is language advocating, advising, or teaching the overthrow of organized government by unlawful means. These words imply urging to action. ...

The Manifesto, plainly, is neither the statement of abstract doctrine nor, as suggested by counsel, mere prediction that industrial disturbances and revolutionary mass strikes will result spontaneously in an inevitable process of evolution in the economic system. It advocates and urges in fervent language mass action which shall progressively foment industrial disturbances and through political mass strikes and revolutionary mass action overthrow and destroy organized parliamentary government. ...

For present purposes we may and do assume that freedom of speech and of the press - which are protected by the First Amendment from abridgment by Congress - are among the fundamental personal rights and "liberties" protected by the due process clause of the Fourteenth Amendment from the impairment by the states. ...

It is a fundamental principle, long established, that the freedom of speech and of the press which is secured by the Constitution does not confer an absolute right to speak or publish, without responsibility, whatever one may choose, or an unrestricted and unbridled license that gives immunity for every possible use of language and prevents the punishment of those who abuse this freedom. ... That a state in the exercise of its police power may punish those who abuse this freedom by utterances inimical to the public welfare, tending to corrupt public morals, incite to crime, or disturb the public peace, is not open to question. ...

By enacting the present statute the state has determined, through its legislative body, that utterances advocating the overthrow of organized government by force, violence, and unlawful means are so inimical to the general welfare and involve such danger of substantive evil that they may be penalized in the exercise of its police power. ... We cannot hold that the present statute is an arbitrary or unreasonable exercise of the police power of the state unwarrantably infringing the freedom of speech or press; and we must and do sustain its constitutionality. ...

It is only necessary to say that, applying the general rules already stated, we find that none of them involved any invasion of the constitutional rights of the defendant. It was not necessary, within the meaning of the statute, that the defendant should have advocated "some definite or immediate act or acts" of force, violence, or unlawfulness. It was sufficient if such acts were advocated in general terms; and it was not essential that their immediate execution should have been advocated. Nor was it necessary that the language should have been "reasonably and ordinarily calculated to incite certain persons" to acts of force, violence, or unlawfulness. The advocacy need not be addressed to specific persons. Thus, the publication and circulation of a newspaper article may be an encouragement or endeavor to persuade to murder, although not addressed to any person in particular. ...

And finding, for the reasons stated, that the statute is not in itself unconstitutional, and that it has not been applied in the present case in derogation of any constitutional right, the judgment of the Court of Appeals is affirmed.

Mr. Justice Holmes. Mr. Justice Brandeis and I are of opinion that this judgment should be reversed. The general principle of free speech, it seems to me, must be taken to be included in the Fourteenth Amendment, in view of the scope that has been given to the word "liberty" as there used, although perhaps it may be accepted with a somewhat larger latitude of interpretation than is allowed to Congress by the sweeping language that governs or ought to govern the laws of the United States. If I am right, then I think that the criterion sanctioned by the full Court in Schenck v. United States, 249 U.S. 47, 52, applies. "The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that [the state] has a right to prevent."

It is true that in my opinion this criterion was departed from in Abrams v. United States, 250 U.S. 616, but the convictions that I expressed in that case are too deep for it to be possible for me as yet to believe that it and Schaefer v. United States, 251 U.S. 466, have settled the law. If what I think the correct test is applied, it is manifest that there was no present danger of an attempt to overthrow the government by force on the part of the admittedly small minority who shared the defendant's views.

It is said that this Manifesto was more than a theory, that it was an incitement. Every idea is an incitement. It offers itself for belief, and, if believed, it is acted on unless some other belief outweighs it or some failure of energy stifles the movement at its birth. The only difference between the expression of an opinion and an incitement in the narrower sense is the speaker's enthusiasm for the result. Eloquence may set fire to reason. But whatever may be thought of the redundant discourse before us, it had no chance of starting a present conflagration. If in the long run the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way.

If the publication of this document had been laid as an attempt to induce an uprising against government at once and not at some indefinite time in the future, it would have presented a different question. The object would have been one with which the law might deal, subject to the doubt whether there was any danger that the publication could produce any result, or in other words, whether it was not futile and too remote from possible consequences. But the indictment alleges the publication and nothing more.

Gitlow v. New York
Supreme Court of the United States
Argued April 12, 1923 Reargued November 23, 1923 Decided June 8, 1925
Full case name	Benjamin Gitlow v. People of the State of New York
Citations	268 U.S. 652 (more) 45 S. Ct. 625; 69 L. Ed. 1138; 1925 U.S. LEXIS 598
Prior history	Defendant convicted, Supreme Court of New York County, 2-5-20; affirmed, 195 A.D. 773 (N.Y. Sup.Ct.App.Div. 1921); affirmed, 136 N.E. 317 (N.Y. 1923)
Subsequent history	None
Holding
Though the Fourteenth Amendment prohibits states from infringing free speech, the defendant was properly convicted under New York's criminal anarchy law for advocating the violent overthrow of the government, through the dissemination of Communist pamphlets.
Court membership
Chief Justice William H. Taft Associate Justices Oliver W. Holmes, Jr. · Willis Van Devanter James C. McReynolds · Louis Brandeis George Sutherland · Pierce Butler Edward T. Sandford · Harlan F. Stone
Case opinions
Majority	Sanford, joined by Taft, Van Devanter, McReynolds, Sutherland, Butler, Stone
Dissent	Holmes, joined by Brandeis
Laws applied
U.S. Const. amends. I, XIV; N.Y. Penal Law §§ 160, 161

Gitlow v. New York, 268 U.S. 652 (1925), was a historically important case argued before the United States Supreme Court in which the Court ruled that the Fourteenth Amendment to the U.S. Constitution had extended the reach of certain provisions of the First Amendment—specifically the provisions protecting freedom of speech and freedom of the press—to the governments of the individual states. The Supreme Court previously held, in Barron v. Baltimore, 32 U.S. 243 (1833), that the Constitution's Bill of Rights applied only to the federal government, and that, consequently, the federal courts could not stop the enforcement of state laws that restricted the rights enumerated in the Bill of Rights. Gitlow v. New York's partial reversal of that precedent began a trend toward nearly complete reversal; the Supreme Court now holds that almost every provision of the Bill of Rights applies to both the federal government and the states. The Court upheld the state law challenged in Gitlow v. New York, which made it a crime to advocate the duty, need, or appropriateness of overthrowing government by force or violence. The Court's ruling on the effects of the Fourteenth Amendment was incidental to the decision, but nevertheless established an extremely significant precedent.

As justification for its decision, the Supreme Court relied on the "due process clause" of the Fourteenth Amendment. This provision, contained in Section One of the amendment, prohibits any state from depriving "any person of life, liberty, or property, without due process of law." Specifically, in its decision the Court stated that "For present purposes we may and do assume 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" (at 666). The Court would go on to use this logic of incorporation much more purposefully in other cases, such as De Jonge v. Oregon, 299 U.S. 353 (1937), Wolf v. Colorado, 338 U.S. 25 (1949), and Gideon v. Wainwright, 372 U.S. 335 (1963), to extend the reach of the Bill of Rights. Constitutional scholars refer to this process as the "incorporation doctrine," meaning that the Supreme Court incorporates specific rights into the due process clause of the Fourteenth Amendment.

Gitlow v. New York was also important for defining the scope of the First Amendment's protection of free speech following the period of the "Red Scare," in which Communists and Socialist Party members were routinely convicted for violating the Espionage Act of 1917 and Sedition Act of 1918. Gitlow, a Socialist, had been convicted of criminal anarchy after publishing a "Left Wing Manifesto." The Court upheld his conviction on the basis that the government may suppress or punish speech when it directly advocates the unlawful overthrowing of the government.

The opinions in this case are notable for their attempt to define more clearly the "clear and present danger" test that came out of Schenck v. United States, 249 U.S. 47 (1919). The majority opinion written by Justice Edward Terry Sanford, embracing the bad tendency test that came out from Abrams v. United States, 250 U.S. 616 (1919), stated that a "State may punish utterances endangering the foundations of government and threatening its overthrow by unlawful means" because such speech clearly "present[s] a sufficient danger to the public peace and to the security of the State." According to Sanford, "a single revolutionary spark may kindle a fire that, smoldering for a time, may burst into a sweeping and destructive conflagration."

In the dissenting opinion, Justice Holmes, the original author of the clear and present danger test, disagreed, arguing that Gitlow presented no present danger because only a small minority of people shared the views presented in the manifesto and because it directed an uprising at some "indefinite time in the future."

See also

• List of United States Supreme Court cases, volume 268
• The Smith Act, which prohibits advocacy of violent overthrow of federal and state governments

References

Spaeth, Harold J.; and Smith, Edward Conrad. (1991). HarperCollins college outline series: Constitution of the United States. (13th ed.). New York: HarperCollins. ISBN 0-06-467105-4

External links

• Full text of the decision courtesy of Findlaw.com
• First Amendment Library entry for Gitlow v. New York
• Exploring Constitutional Conflicts: Clear and Present Danger
• Full text of the opinion at Wikisource
• http://library.thinkquest.org/2760/gitlow.htm

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