Caseflicks

Supreme Court of the United States • 1925

Gitlow v. New York

268 U.S. 652 | 45 S. Ct. 625 | 69 L. Ed. 1138 | 1925 U.S. LEXIS 598

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Takeaway

In short, this case is remembered for recognizing, at least by assumption, that the Fourteenth Amendment protects speech from state interference, while upholding broad state power to punish revolutionary advocacy without proof of imminent danger—a position later displaced by more protective First Amendment doctrine.

Background

Benjamin Gitlow, a leader in the Left Wing Section of the Socialist Party and business manager of its newspaper, The Revolutionary Age, helped publish and circulate the “Left Wing Manifesto.” The Manifesto rejected legislative change and called for revolutionary mass action, including mass political strikes, to destroy the parliamentary state and establish a dictatorship of the proletariat.

New York charged Gitlow under its criminal-anarchy statute, which made it a felony to advocate or publish advocacy of overthrowing organized government by force, violence, or other unlawful means. There was no evidence that the Manifesto had produced violence, an attempted uprising, or any concrete harmful result. A jury convicted Gitlow, and the New York Appellate Division and Court of Appeals affirmed. Gitlow argued that the statute, both on its face and as applied, violated the liberty of speech and press protected by the Fourteenth Amendment.

Issues

Issue #1

Whether freedom of speech and of the press are liberties protected from state impairment by the Fourteenth Amendment’s Due Process Clause.

Holding

The Court assumed that First Amendment freedoms of speech and press are fundamental liberties protected against state action by the Fourteenth Amendment, although it did not formally decide the question.

Reasoning

The Court treated freedom of speech and press as among the fundamental personal rights included within the Fourteenth Amendment’s protection of “liberty.” This assumption allowed the Court to review New York’s criminal-anarchy law for a constitutional infringement, notwithstanding earlier language suggesting that the Fourteenth Amendment imposed no speech restriction on the States.

The Court also stressed that constitutional protection for expression is not an absolute license to say or publish anything without legal responsibility. States retain police-power authority to punish speech that incites crime, threatens public peace, or endangers the security and continued existence of government.

Issue #2

Whether New York’s criminal-anarchy statute unconstitutionally punished abstract political doctrine rather than speech creating a sufficiently concrete danger.

Holding

No. As construed and applied by the New York courts, the statute constitutionally punished advocacy of action to overthrow government by force, violence, or unlawful means.

Reasoning

The Court construed the statute narrowly enough to exclude abstract doctrine, historical discussion, philosophical essays, and advocacy of lawful constitutional change. Its operative terms—“advocates,” “advises,” and “teaches”—were read to require urging action toward the unlawful overthrow of organized government.

Gitlow’s Manifesto was not, in the Court’s view, a detached academic discussion or a mere prediction of eventual revolution. It fervently urged revolutionary organization, militant mass strikes, and revolutionary mass action to conquer and destroy the parliamentary state. The Court held that these methods necessarily contemplated force, violence, or unlawfulness.

The legislature had determined that advocacy of governmental overthrow by unlawful means creates a danger of substantive evil—breaches of the peace and ultimately revolution. The Court gave substantial deference to that legislative judgment and held that a State may suppress the danger at its inception rather than wait for actual disorder or an imminent attempt to overthrow government.

Because the statute itself constitutionally identified a category of dangerous advocacy, the Court held that it need not independently decide whether Gitlow’s particular publication was likely to cause immediate harm. The Court distinguished cases in which speech was prosecuted under a general law directed at conduct, where a court must assess whether the particular words created a clear and present danger.

Issue #3

Whether Gitlow could be convicted only if he advocated a definite and immediate unlawful act or if his language was likely to incite particular persons to act.

Holding

No. The statute did not require advocacy of an immediate specific act, nor did it require that the advocacy be directed to identified persons or be shown likely to persuade them.

Reasoning

The Court held that general advocacy of force, violence, or unlawful means to overthrow government fell within the statute. The State was not required to prove that Gitlow called for a particular imminent act or demanded immediate execution of a revolutionary plan.

Likewise, advocacy could be criminal even when addressed to the public generally. A publication circulated as propaganda could encourage unlawful conduct without being directed to a named person or a discrete audience.

Dissents

Justice Holmes

Reasoning

Justice Holmes, joined by Justice Brandeis, agreed that freedom of speech is included within the Fourteenth Amendment’s concept of liberty. But he maintained that the governing constitutional test was whether the words, in their actual circumstances, created a clear and present danger of bringing about an evil the State may prevent.

Applying that test, Holmes found no present danger. Gitlow’s supporters were an admittedly small minority, and the Manifesto had no realistic chance of producing an immediate attempt to overthrow the government. Its revolutionary rhetoric contemplated an indefinite future struggle, not an uprising at once.

Holmes rejected the majority’s distinction between an idea and incitement as too loose to justify punishment here. Every idea, he wrote, offers itself for belief and potentially for action; the relevant constitutional question is whether the speech poses a sufficiently immediate and serious threat. Because this publication was too remote and futile to create such a threat, he would have reversed the conviction.

Holmes also invoked the broader value of free speech: if the belief in proletarian dictatorship were ultimately to prevail with the community, freedom of speech means that the belief should receive its opportunity to compete for acceptance rather than be suppressed merely because it is revolutionary.