Gitlow v. New York

Summary

In 1902, after the assassination of President McKinley by an avowed anarchist, New York made it a felony to advocate, by speech or writing, the doctrine that organized government should be overthrown by force, violence or any unlawful means. In June 1919 the Left Wing Section of the Socialist Party held a national conference in New York City, and its National Council, of which Benjamin Gitlow was a member, issued a Left Wing Manifesto. Gitlow, a former state assemblyman and business manager of the group's paper, The Revolutionary Age, arranged for the first issue to be printed with the Manifesto in it, and sixteen thousand copies were circulated. The Manifesto called for mass industrial strikes and revolutionary mass action to destroy the existing state and establish a dictatorship of the proletariat. No disorder was shown to have followed. Gitlow was convicted of criminal anarchy and sentenced to prison, and the New York appellate courts affirmed. The question was whether the statute, as applied to Gitlow, deprived him of liberty without due process of law under the Fourteenth Amendment. His counsel, Walter H. Pollak, argued that the liberty protected against the states includes freedom of speech and the press, and that the law punished the mere expression of doctrine without any showing that it created a clear and present danger of unlawful action. New York answered that the Manifesto was not abstract theory but a call to action, and that a state may protect itself by forbidding advocacy of its violent overthrow before that advocacy bears fruit. On 8 June 1925 the Court affirmed, seven to two. Justice Sanford wrote that for present purposes the Court may and does assume that freedom of speech and of the press are among the liberties the Fourteenth Amendment protects from impairment by the states. That freedom, however, is not an absolute right to publish whatever one chooses. The Manifesto was the language of direct incitement, and the legislature had already determined that such utterances endanger the public peace; that judgment deserved great weight. A state need not wait until a single revolutionary spark kindles a conflagration. The clear and present danger test of Schenck, Sanford said, applied to statutes that forbid acts generally, not to a law that itself names the forbidden utterances. Justice Holmes, joined by Justice Brandeis, agreed that free speech is included in the Fourteenth Amendment but would have applied the Schenck test and reversed. Every idea is an incitement, he wrote, and there was no present danger from a small minority's redundant discourse. The library text gives Sanford's opinion and the Holmes dissent from the United States Reports, footnotes omitted. Governor Alfred E. Smith pardoned Gitlow in December 1925. In 1931 the Court applied the assumption made in Gitlow to strike down state laws in Stromberg v. California and Near v. Minnesota, and Brandenburg v. Ohio (1969) later required incitement to imminent lawless action.

Plot or Argument

• The statute, the conference and the Manifesto

  Sanford quotes New York's criminal anarchy law, describes the Left Wing conference of June 1919 and Gitlow's role in publishing The Revolutionary Age, and summarizes the Manifesto's call for mass strikes and revolutionary action.

• Not abstract doctrine but incitement

  The jury could find that the Manifesto advocated not merely the abstract doctrine of overthrow but action to that end; its language was that of direct incitement, aimed at mass action culminating in the destruction of organized government.

• The assumption about the Fourteenth Amendment

  Sanford assumes for present purposes that freedom of speech and press are fundamental liberties protected against the states, setting aside an earlier remark that the amendment imposes no such restriction.

• Freedom with responsibility and the legislature's judgment

  Citing Story and earlier cases, Sanford holds that liberty of speech does not protect abuse. Because the legislature itself judged advocacy of violent overthrow dangerous, every presumption favors the statute, and the state may act before the spark becomes a fire.

• Schenck distinguished

  Where a statute forbids certain utterances by name, the question is only whether the statute is valid, not whether each particular utterance posed a clear and present danger. The New York law is neither arbitrary nor unreasonable, and the judgment is affirmed.

• Holmes's dissent

  Holmes, for himself and Brandeis, applies the Schenck test, notes his disagreement with Abrams, argues that every idea is an incitement and that this one posed no present danger, and observes that Gitlow was charged with publication alone, not with an attempt to cause an immediate uprising.

Characters

• Benjamin Gitlow, plaintiff in error

  Former New York assemblyman and Left Wing Socialist leader who published the Manifesto in The Revolutionary Age.

• Justice Edward Terry Sanford, author of the majority opinion

  Tennessee justice who assumed free speech applied to the states yet upheld the conviction.

• Justice Oliver Wendell Holmes Jr., dissenter

  Wrote the short dissent arguing that every idea is an incitement and that no present danger existed.

• Justice Louis D. Brandeis, joined the dissent

  Joined Holmes, and two years later wrote his own concurrence on free speech in Whitney v. California.

• Walter H. Pollak, counsel for Gitlow

  New York lawyer who argued that the Fourteenth Amendment's liberty includes free speech.

• Alfred E. Smith, Governor of New York

  Pardoned Gitlow in December 1925.

Lessons

• Bringing the Bill of Rights to the states

  Barron v. Baltimore (1833) held that the Bill of Rights restrained only the federal government. In Gitlow the Court assumed that the Fourteenth Amendment's word liberty includes freedom of speech and press against the states, a step that began the process later called incorporation.

  • What exactly does Sanford assume, and why does he call it an assumption for present purposes?
  • Why did the Fourteenth Amendment make it possible to apply the First Amendment's freedoms to the states?
  • Should the same protections of speech apply against state and federal governments?

• Advocacy, incitement and abstract doctrine

  Sanford distinguishes the abstract teaching of a doctrine from advocacy that urges action, and finds the Manifesto to be the latter. Holmes doubts the distinction, saying every idea is an incitement and that the difference lies only in the speaker's enthusiasm.

  • What features of the Manifesto lead Sanford to call it incitement?
  • How does Holmes's claim that every idea is an incitement challenge Sanford's distinction?
  • Is there a meaningful line between teaching an idea and urging people to act on it?

• Who measures the danger?

  The majority defers to the legislature's judgment that advocacy of violent overthrow is dangerous as a class; Holmes would have a court ask whether this publication, in these circumstances, posed a present danger. The case is a study in how much weight courts should give legislative findings about speech.

  • Why does Sanford say the state cannot be required to weigh every utterance on a jeweler's scale?
  • What does Holmes think it shows that the charge alleged only publication, not an attempt at immediate uprising?

• Free speech and the long run

  Holmes closes by saying that if a doctrine is destined in the long run to be accepted by the dominant forces of the community, free speech means it should be given its chance. The line expresses confidence in open debate, and also raises the question of whether a free society must tolerate advocacy of its own overthrow.

  • What view of truth and persuasion lies behind Holmes's final sentence?
  • How might Sanford answer that sentence?
  • Must a free society permit speech that calls for ending free government?

Context

The Russian Revolution of 1917 and a wave of strikes and bombings in 1919 produced widespread fear of revolutionary movements in the United States, a period often called the Red Scare. That summer the Socialist Party split, and its Left Wing gave rise to the Communist Party and the Communist Labor Party. States revived or enacted criminal anarchy and criminal syndicalism laws, and the federal government conducted mass arrests and deportations of radical aliens in the Palmer Raids of 1919-1920.

Composition

Gitlow was arrested in November 1919, tried in early 1920 with Clarence Darrow as his trial lawyer, and sentenced to five to ten years. The Appellate Division affirmed in 1921 and the Court of Appeals in 1922. The Supreme Court heard argument in April 1923, ordered reargument in November 1923, and decided the case in June 1925. Holmes's dissent built on his Abrams dissent of 1919.

Reception

The assumption in Gitlow quickly became settled law: in Stromberg v. California and Near v. Minnesota (both 1931) the Court struck down state laws as violating freedom of speech and press. The majority's deference to legislative judgments about dangerous advocacy was followed in Whitney v. California (1927), where Brandeis wrote a celebrated concurrence, and echoed in Dennis v. United States (1951). Brandenburg v. Ohio (1969) overruled Whitney and adopted the standard of incitement to imminent lawless action, which is now generally applied in place of Gitlow's reasoning on the merits.

Comparisons

• schenck-v-united-states

  Sanford limits the Schenck test to statutes that do not name forbidden speech, while Holmes in dissent applies his own 1919 formula to the Manifesto.

• near-v-minnesota

  Six years later Chief Justice Hughes relied on the Gitlow assumption to hold a state law invalid as a prior restraint on the press, and the Near dissent objected to that extension.

• barron-v-baltimore

  Marshall's 1833 holding that the Bill of Rights binds only the national government is the background against which Gitlow's assumption about the Fourteenth Amendment marks a turn.

• the-communist-manifesto

  The Left Wing Manifesto drew on the doctrine of class struggle and proletarian dictatorship that Marx and Engels set out in 1848, which Holmes refers to as the beliefs expressed in proletarian dictatorship.

• on-liberty

  Mill's argument that even false opinions must be heard so that truth may be tested underlies Holmes's confidence that ideas should be given their chance.

• the-founding-documents

  The First Amendment's command that Congress shall make no law abridging freedom of speech is the text the Court here carries, by assumption, into the Fourteenth Amendment.

Quotes

For Students

A reading companion for classical Christian high school students. See the student guide.

Reading Guide

Watch for

• The text of New York's criminal anarchy law and the word advocacy.
• How Sanford characterizes the Left Wing Manifesto.
• The sentence beginning For present purposes we may and do assume.
• Sanford's explanation of why the Schenck test does not govern this statute.
• Holmes's phrases every idea is an incitement and given their chance.

Key terms and names

Criminal anarchy

Under New York law, the doctrine that organized government should be overthrown by force, violence or unlawful means; advocating it was a felony.

Incorporation

The process by which the Court has held provisions of the Bill of Rights applicable to the states through the Fourteenth Amendment.

Due process clause

The Fourteenth Amendment's provision that no state shall deprive any person of life, liberty or property without due process of law.

Incitement

Speech that urges others to commit unlawful acts, as distinct from the teaching of abstract doctrine.

Bad tendency

A standard allowing punishment of speech whose natural tendency is to bring about evils the state may prevent, associated with the Gitlow majority.

Reargument

A second hearing of a case ordered by the Court before it decides.

Seminar Questions

1. Comprehension What did the New York criminal anarchy statute forbid, and what did Gitlow do that violated it?
2. Comprehension What does the Court assume about freedom of speech and the Fourteenth Amendment?
3. Comprehension On what point do Sanford and Holmes agree?
4. Interpretation Why does Sanford think the Schenck test does not apply when a legislature has named the forbidden speech?
5. Interpretation Holmes calls the Manifesto redundant discourse. How does that description support his conclusion?
6. Big Question Should a free society protect speech advocating that free government itself be overthrown?

Faith Connections

• Proverbs 26:20-21 (Scripture)

  Where no wood is, the fire goes out, and a contentious man kindles strife; the proverb shares the majority's image of words as fuel for fire.

• 1 Timothy 2:1-2 (Scripture)

  Paul urges prayers for kings and all in authority that believers may lead a quiet and peaceable life, a text on the good of civil order.

• John Milton, Areopagitica (1644) (Great Conversation)

  Milton's question, who ever knew Truth put to the worse in a free and open encounter, anticipates Holmes's trust that ideas should be tested in open contest.

Logic and Rhetoric

Central argument: Sanford reasons that freedom of speech, even if protected against the states, does not cover incitement to violent overthrow; that the legislature reasonably judged such advocacy dangerous as a class; and that the state may therefore punish it without proof of immediate danger. Holmes replies that the clear and present danger test governs and that a small group's manifesto posed no present danger.

Rhetorical device: metaphor. Sanford's revolutionary spark that may smoulder and then burst into conflagration (quote 2) argues for early prevention; Holmes turns the image in quote 4, saying eloquence may set fire to reason yet this discourse had no chance of starting a present conflagration.

Debate: Resolved: that a state may punish advocacy of violent overthrow of the government even when no immediate danger is shown.

Memory Work

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.

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.

Writing Prompts

Essay: Explain why Gitlow is remembered both as a loss for the defendant and as a turning point for free speech against the states.

Comparison with Near v. Minnesota: Trace how the assumption Sanford made in Gitlow became the ground on which the Court struck down Minnesota's press law six years later, and explain what the Near dissent objected to.

Medical Lens

Sanford's opinion and the Holmes dissent deal with revolutionary advocacy, state criminal law and incorporation, and contain nothing on medicine or mental life.

Creative Prompts

• Classroom

  Reargue the case in November 1923: Pollak argues that liberty includes free speech and that no danger was shown; New York argues that a legislature may forbid advocacy of violent overthrow; student justices write one-paragraph opinions and vote.

• Essay

  Compare the fire images in the case: Sanford's revolutionary spark and Holmes's eloquence that sets fire to reason. Explain what each image is meant to prove.

• Dialogue

  Write an imagined conversation in 1925 between Holmes and Sanford about whether the Manifesto was a theory or a call to action.

• Essay

  Write a short brief for New York explaining why the Schenck test should not apply to a statute that names the forbidden advocacy.

• Classroom

  Make a timeline of incorporation from Barron v. Baltimore (1833) through the Fourteenth Amendment (1868), Gitlow (1925) and Near (1931).

Further Reading

• A Worthy Tradition: Freedom of Speech in America, Harry Kalven Jr.

  Law professor's survey of free-speech doctrine, with close discussion of Gitlow and the Holmes-Brandeis dissents.

• Freedom for the Thought That We Hate: A Biography of the First Amendment, Anthony Lewis

  Readable history of the First Amendment from the Sedition Act through modern cases.

• Perilous Times: Free Speech in Wartime from the Sedition Act of 1798 to the War on Terrorism, Geoffrey R. Stone

  Covers the Red Scare prosecutions, including Gitlow's, in the context of postwar fears.