Gitlow v. New York 268 U.S. 652 (1925)

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GITLOW v. NEW YORK 268 U.S. 652 (1925)

Gitlow was convicted under a state statute proscribing advocacy of the overthrow of government by force. In a paper called The Revolutionary Age, he had published "The Left Wing Manifesto," denouncing moderate socialism and prescribing "Communist revolution." There was no evidence of any effect resulting from the publication. Rejecting the clear and present danger test which oliver wendell holmes and louis d. brandeis reasserted in their dissent, Justice edward sanford for the Court upheld the statute. Enunciating what subsequently came to be called the remote bad tendency test, Sanford declared that the state might "suppress the threatened danger in its incipiency." "It cannot reasonably be required to defer the adoption of measures for its own … safety until the revolutionary utterances lead to actual disturbances of the public peace or imminent and immediate danger of its own destruction."

Unwilling to reverse its decision in schenck v. united states (1919), the Court limited the clear and present danger test enunciated there to the situation in which a speaker is prosecuted under a statute prohibiting acts and making no reference to language. Under such a statute the legislature has made no judgment of its own as to the danger of any speech, and the unlawfulness of the speech must necessarily depend on whether "its natural tendency and probable effect was to bring about the substantive evil" that the legislature had proscribed. In short, Sanford sought to confine the danger test to its origin in the law of attempts and to strip it of its imminence aspect. He argued that where a legislature itself had determined that a certain category of speech constituted a danger of substantive evil, "every presumption [was] to be indulged in favor of the validity" of such an exercise of the police power.

The preferred freedoms doctrine that became central to the speech cases of the next two decades was largely directed toward undermining the Gitlow position that state statutes regulating speech ought to be subject to no more demanding constitutional standards than the reasonableness test applied to state economic regulation.

The Gitlow formula was rejected in the 1930s, but the Court returned to some of its reasoning in the 1950s, particularly to the notion that where revolutionary speech is involved, government need not wait until "the spark … has enkindled the flame or blazed into the conflagration." Such reasoning, bolstered by the Gitlow distinction between advocacy and abstract, academic teaching informed the dennis v. united states (1951) and yates v. united states (1951) decisions that upheld the Smith Act, a federal statute in part modeled on the New York criminal anarchy statute sustained in Gitlow.

The Court's language in Gitlow was equivocal, and it provided no rationale. Indeed, Gitlow is most often cited today for its dictum, "incorporating" first amendment free speech guarantees into the due process clause of the fourteenth amendment, thus rendering the Amendment applicable to the states as well as to Congress. (See in-corporation doctrine.)

Holmes's Gitlow dissent did not address the question so troublesome to believers in judicial self-restraint: why should courts not defer to the legislature's judgment that a particular kind of speech is too dangerous to tolerate when, in applying the due process clause, they do defer to other legislative judgments? He did attack the majority's distinction between lawful abstract teaching and unlawful incitement in language that has become famous:

Every idea is an incitement. It offers itself for belief and if believed it is acted on unless some other belief outweighs it.… The only difference between the expression of an opinion and an incitement in the narrower sense is the speaker's enthusiasm for the result.… 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.

Martin Shapiro
(1986)