The First Amendment Does Not Protect Subversive Speech

Edward T. Sanford

In 1921 Benjamin Gitlow, a radical Socialist, was convicted of violating New York's Criminal Anarchy Act for publishing a tract that called for mass strikes and revolutionary actions to establish a Communist regime in the United States. On appeal to the Supreme Court, he argued that the conviction violated his free speech rights. A divided Supreme Court upheld his conviction in 1925 in Gitlow v. New York; excerpts from the majority opinion written by associate justice Edward T. Sanford are presented here. The Court argued that political dissent could be outlawed if, in the judgment of state legislators and other government officials, such dissent could possibly threaten the government—even if there was no proven imminent danger to the government or public order.

Source

Edward T. Sanford, majority opinion, Gitlow v. New York, 268 U.S. 652, 1925.

The case is historically significant because it marked the first time that justices agreed that freedom of speech is among the personal rights protected by the due process clause of the Fourteenth Amendment. Therefore, states—not just the federal government—must adhere to the First Amendment. This decision reversed a statement from a 1922 case (Prudential Ins. Co. v. Cheek) in which the Court ruled that states did not have the obligation to protect free speech. The Supreme Court in Gitlow did not provide any reasoning or argument about their historic change of position, which opened the door to future First Amendment challenges. Since Gitlow the majority of the Supreme Court's free speech decisions have involved state rather than federal actions.

Primary Source Text

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 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:

1. 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,
2. 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 calledThe 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. . . .

Effects of the Manifesto

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. . . .

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: 1st, that the "liberty" protected by the Fourteenth Amendment includes the liberty of speech and of the press; and 2d, 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 . . . 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. It concludes with a call to action in these words:

The proletariat revolution and the Communist reconstruction of society—the struggle for these—is now indispensable. . . . The Communist International calls the proletariat of the world to the final struggle!

This is not the expression of philosophical abstraction, the mere prediction of future events; it is the language of direct incitement.

The means, advocated for bringing about the destruction of organized parliamentary government, namely, mass industrial revolts usurping the functions of municipal government, political mass strikes directed against the parliamentary state, and revolutionary mass action fur its final destruction, necessarily imply the use of force and violence, and in their essential nature are inherently unlawful in a constitutional government of law and order. That the jury were warranted in finding that the Manifesto advocated not merely the abstract doctrine of overthrowing organized government by force, violence, and unlawful means, but action to that end, is clear.

Free Speech Not an Absolute Right

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 impairment by the States. We do not regard the incidental statement in Prudential Ins. Co. v. Cheek, that the Fourteenth Amendment imposes no restrictions on the States concerning freedom of speech, as determinative of this question.

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. . . .

And, for yet more imperative reasons, a State may punish utterances endangering the foundations of organized government and threatening its overthrow by unlawful means. These imperil its own existence as a constitutional State. Freedom of speech and press . . . does not protect disturbances to the public peace or the attempt to subvert the government. . . . It does not protect publications or teachings which tend to subvert or imperil the government or to impede or hinder it in the performance of its governmental duties. It does not protect publications prompting the overthrow of government by force; the punishment of those who publish articles which tend to destroy organized society being essential to the security of freedom and the stability of the State. . . . And a State may penalize utterances which openly advocate the overthrow of the representative and constitutional form of government of the United States and the several States, by violence or other unlawful means. . . . In short this freedom does not deprive a State of the primary and essential right of self preservation; which, so long as human governments endure, they cannot be denied. . . .

The Danger of a Revolutionary Spark

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. That determination must be given great weight. Every presumption is to be indulged in favor of the validity of the statute. . . . That utterances inciting to the overthrow of organized government by unlawful means, present a sufficient danger of substantive evil to bring their punishment within the range of legislative discretion, is clear. Such utterances, by their very nature, involve danger to the public peace and to the security of the State. They threaten breaches of the peace and ultimate revolution. And the immediate danger is none the less real and substantial, because the effect of a given utterance cannot be accurately foreseen. The State cannot reasonably be required to measure the danger from every such utterance in the nice balance of a jeweler's scale. A single revolutionary spark may kindle a fire that, smoldering for a time, may burst into a sweeping and destructive conflagration. It cannot be said that the State is acting arbitrarily or unreasonably when in the exercise of its judgment as to the measures necessary to protect the public peace and safety, it seeks to extinguish the spark without waiting until it has enkindled the flame or blazed into the conflagration. It cannot reasonably be required to defer the adoption of measures for its own peace and safety until the revolutionary utterances lead to actual disturbances of the public peace or imminent and immediate danger of its own destruction; but it may, in the exercise of its judgment, suppress the threatened danger in its incipiency. . . .

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.

This being so it may be applied to every utterance . . . which is of such a character and used with such intent and purpose as to bring it within the prohibition of the statute. . . . In other words, when the legislative body has determined generally, in the constitutional exercise of its discretion, that utterances of a certain kind involve such danger of substantive evil that they may be punished, the question whether any specific utterance coming within the prohibited class is likely, in and of itself, to bring about the substantive evil, is not open to consideration. It is sufficient that the statute itself be constitutional and that the use of the language comes within its prohibition. . . .

The Clear and Present Danger Test

The general statement in the Schenck¹ case, that 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"—upon which great reliance is placed in the defendant's argument . . . has no application to [cases] like the present, where the legislative body itself has previously determined the danger of substantive evil arising from utterances of a specified character. . . . 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.

1. Schenck v. United States, 1919