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.

Top 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.

• 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.

• 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.

• 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.

Verified Quotes

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.