Gitlow v. New York
268 U.S. 652 (1925)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
The First Amendment's protections of free speech and press are fundamental personal rights and liberties protected by the Due Process Clause of the Fourteenth Amendment from impairment by the states. However, a state may prohibit speech advocating the violent overthrow of the government because such speech presents a danger to public peace and the security of the state, and the legislature's determination of this danger is entitled to great weight.
Facts:
- Benjamin Gitlow was a member of the Left Wing Section of the Socialist Party.
- Gitlow served as the business manager for the party's newspaper, 'The Revolutionary Age.'
- He arranged for the printing and distribution of 16,000 copies of a 'Left Wing Manifesto' in the newspaper.
- The Manifesto advocated for the overthrow of the 'parliamentary state' through 'revolutionary mass action,' including mass industrial revolts and political strikes.
- The Manifesto called for the establishment of a 'revolutionary dictatorship of the proletariat' in place of the existing government.
- There was no evidence that the publication and circulation of the Manifesto resulted in any concrete action or disturbance.
Procedural Posture:
- Benjamin Gitlow was indicted for the statutory crime of criminal anarchy in the Supreme Court of New York (a trial-level court).
- Following a jury trial, Gitlow was convicted and sentenced to imprisonment.
- Gitlow appealed the conviction, and the judgment was affirmed by the Appellate Division of the Supreme Court of New York (an intermediate appellate court).
- Gitlow then appealed to the New York Court of Appeals (the state's highest court), which also affirmed the conviction.
- The U.S. Supreme Court granted a writ of error to review the judgment of the New York Court of Appeals.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Does a New York statute that prohibits advocating the overthrow of the government by force or violence violate the free speech and press clauses of the First Amendment as applied to the states through the Due Process Clause of the Fourteenth Amendment?
Opinions:
Majority - Mr. Justice Sanford
No, the New York statute is constitutional. While freedom of speech and press are fundamental rights protected from state infringement by the Fourteenth Amendment, this freedom is not absolute. A state may, in the exercise of its police power, punish utterances that endanger the foundations of organized government and threaten its overthrow by unlawful means. The legislative body has determined that advocating the violent overthrow of government is a substantive evil, and the state does not need to wait until such advocacy presents a 'clear and present danger' to act; it may extinguish the revolutionary 'spark' before it becomes a 'conflagration.' The question is not whether a specific utterance is likely to produce a substantive evil, but whether the speech falls within a class of utterances the legislature has constitutionally deemed dangerous.
Dissenting - Mr. Justice Holmes
Yes, the conviction should be reversed because the statute, as applied, violates the Fourteenth Amendment. The proper test for restricting speech is whether the words 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 the state has a right to prevent. Here, the 'redundant discourse' in the Manifesto, published by an 'admittedly small minority,' had no chance of starting a 'present conflagration.' Every idea is an incitement, and under the principle of free speech, even beliefs in proletarian dictatorship should be given their chance to compete in the marketplace of ideas unless they pose an immediate danger.
Analysis:
This landmark case is foundational for modern First Amendment law primarily for incorporating the Free Speech Clause against the states through the Fourteenth Amendment, meaning states could no longer abridge freedom of speech. Paradoxically, the Court then upheld the state law, creating a 'dangerous tendency' test that gave legislatures significant deference to outlaw entire categories of speech deemed harmful, regardless of the immediate context or likelihood of harm. This created a doctrinal tension with the 'clear and present danger' test, setting the stage for decades of debate over how and when the government can constitutionally restrict speech.
