GITLOW V. NEW YORK

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, a splinter group of the Socialist Party. The group formed in opposition to the party's dominant policy of "moderate socialism," and criticized the party for its insistence on introducing socialism through the legislative process. The Left Wing Section advocated change through militant and revolutionary means. It viewed mass industrial revolution as the mechanism by which the parliamentary state would be destroyed and replaced by a system of communist socialism.

Gitlow was responsible for publishing and disseminating the group's views. He did so in such pamphlets as the "The Left Wing Manifesto." The manifesto was also 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 over-throwing 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 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.

In his appeal, Gitlow argued that Left Wing publications had resulted in no real action. Because they were merely utterances, he contended that the New York state laws violated the right of free speech protected by the first amendment. In sustaining the defendant's conviction, the U.S. Supreme Court assumed that the due process clause of the fourteenth amendment prevented the states from impairing the freedoms guaranteed by the First Amendment. The Court also 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 Gitlow's publications used language advocating, advising, or teaching the over-throw of organized government by unlawful means, and that such language implied an urging to action.

The Court reasoned that revolutionary actions called for in Gitlow's publications, including mass industrial uprisings and political mass strikes, implied the use of force and violence. Such actions are inherently unlawful in a democratic system of government. It ruled that freedom of expression does not grant an individual the absolute right to speak or publish, nor does it offer unqualified immunity from punishment for every possible utterance or publication. The state, in the exercise of its police power, is allowed to punish anyone who abuses the freedom of speech and press by utterances that are adverse to the public welfare, tend to corrupt public morals, incite to crime, or breach the public peace. As part of its primary and essential right of self-preservation, a state can penalize any expression that imperils the foundations of organized government and threatens its over-throw by unlawful means. The Court cautioned, however, that enforcement of state statutes cannot be arbitrary or unreasonable.

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 "dangerous tendency" doctrine it formulated in Gitlow, that incitement to action is implicit in utterances that advocate unlawful acts. The Court subsequently held that states may only prohibit utterances that directly incite lawless action or advocate individuals to imminently take lawless action.

further readings

Levinson, Nan. 2003. Outspoken: Free Speech Stories. Berkeley: Univ. of California Press.

cross-references

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

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