Gitlow v. New York

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1925 United States Supreme Court case

Gitlow v. New York, 268 U.S. 652 (1925), was a landmark decision of the United States Supreme Court holding that the Fourteenth Amendment to the United States Constitution had extended the First Amendment 's provisions protecting freedom of speech and freedom of the press to apply to the governments of U.S. states . Along with _Chicago, Burlington & Quincy Railroad Co. v. City of Chicago _ (1897), it was one of the first major cases involving the incorporation of the Bill of Rights . It was also one of a series of Supreme Court cases that defined the scope of the First Amendment's protection of free speech and established the standard to which a state or the federal government would be held when it criminalized speech or writing.

The case arose from the conviction under New York state law of Socialist politician and journalist Benjamin Gitlow for the publication of a "left-wing manifesto" in 1919. In a majority opinion joined by six other justices, Associate Justice Edward Terry Sanford upheld the conviction under the bad tendency test, writing that government may suppress or punish speech that directly advocates the unlawful overthrow of the government. Associate Justice Oliver Wendell Holmes Jr. dissented, arguing that state and federal governments should only be permitted to limit free speech under the "clear and present danger " test that he had previously laid out in _Schenck v. United States _ (1919).

In his majority opinion, Sanford laid out the grounds for incorporation of freedom of speech and freedom of the press, holding that they were among the rights protected by the Due Process Clause of the Fourteenth Amendment. Later Supreme Court cases such as _De Jonge v. Oregon _ (1937) would incorporate other provisions of the Bill of Rights on the same basis as Gitlow.

Background

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New York's Criminal Anarchy Law was passed in 1902 following the assassination of President William McKinley by an anarchist in Buffalo, New York, in September 1901. Under the Criminal Anarchy Law, people seen as activists supporting the destruction of American government through revolutionary means could be arrested in an attempt to prevent American Bolsheviks from gaining a national following.

Following the Red Scare of 1919–20, a variety of leftists, either anarchists , sympathizers with the Bolshevik Revolution , labor activists, or members of a communist or socialist party, were convicted for violating the Espionage Act of 1917 and Sedition Act of 1918 on the basis of their writings or statements. Benjamin Gitlow , a member of the Socialist Party of America , who had served in the New York State Assembly , was charged with criminal anarchy under New York's Criminal Anarchy Law of 1902 for publishing in July 1919 a document called "Left wing manifesto " in The Revolutionary Age, a newspaper for which he served as business manager. Gitlow's trial counsel was renowned defense attorney Clarence Darrow . His trial lasted from January 22 to February 5, 1920.

His defense contended that the Manifesto represented historical analysis rather than advocacy. Moreover, he claimed that he should not be arrested for his writing since the manifesto's distribution was not the inciting incident for any actions against the government. The prosecution refuted Gitlow's claim, stating, "Prosecutions have been for the use of words or printed arguments urging actions which if carried out by the reader or hearer would have resulted in the commission of a crime." The prosecution claimed that the Manifesto's intent was to convince American readers to commit crimes, and that in itself should be punishable by law. It took the jury three hours to convict Gitlow on February 11, 1920, and sentenced to 5 to 10 years in prison. He served more than two years at Sing Sing prison before his motion to appeal was granted and he was released on bail. State courts of appeal upheld his conviction.

Gitlow was the first major First Amendment case that the American Civil Liberties Union argued before the Supreme Court.

The Court had to consider whether it could review a challenge to a state law on the basis that it violated the federal constitution. If it determined that such a challenge lay within the scope of its authority, then it had to review the application of the law to the case at hand, the specific violation of the statute.

Supreme Court ruling

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Free speech

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The Supreme Court upheld Gitlow's conviction 7–2, with Louis Brandeis and Oliver W. Holmes dissenting on the grounds that even "indefinite" advocacy of overthrowing government should be protected speech.

The Court upheld Gitlow's conviction on the basis that the government may suppress or punish speech that directly advocates the unlawful overthrow of the government and it upheld the constitutionality of the state statute at issue, which made it a crime to advocate the duty, need, or appropriateness of overthrowing government by force or violence.

Justice Edward Terry Sanford 's majority opinion attempted to define more clearly the "clear and present danger " test developed a few years earlier in _Schenck v. United States _. He embraced "the bad tendency test" found in _Shaffer v. United States _, which held that a "State may punish utterances endangering the foundations of government and threatening its overthrow by unlawful means" because such speech clearly "present[s] a sufficient danger to the public peace and to the security of the State."

According to Sanford, a "single revolutionary spark may kindle a fire that, smoldering for a time, may burst into a sweeping and destructive conflagration." He said the Manifesto contained "the language of direct incitement" and was not "the expression of philosophical abstraction." Relying on the argument that incendiary speech may be suppressed “preemptively” Justice Sanford asserted that governments cannot be required to wait until revolutionary publications “lead to actual disturbances of the public peace or imminent and immediate danger of its own destruction” but can “suppress the threatened danger in its incipiency” or “extinguish the spark without waiting until it has enkindled the flame or blazed into the conflagration.”

In his dissent, Holmes, the author of _Schenck'_s clear and present danger test, wrote that he believed it was still the appropriate test to employ in judging the limits of freedom of expression. Joined by Brandeis, he argued that Gitlow presented no present danger because only a small minority of people shared the views presented in the manifesto and because it directed an uprising at some "indefinite time in the future." Moreover, he responded to S

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