Gitlow v. New York

Petitioner
Benjamin Gitlow, publisher of The Revolutionary Age newspaper
Respondent
State of New York
Petitioner's Claim
That a statute making a crime of anarchy violated the Due Process Clause of the Fourteenth Amendment.
Chief Lawyers for Petitioner
Walter Nelles and Walter H. Pollak
Chief Lawyers for Respondent
W.J. Weatherbee, Deputy Attorney General of New York, and John Caldwell Myers, Assistant District Attorney of New York County
Justices for the Court
Pierce Butler, James Clark McReynolds, Edward Terry Sanford (writing for theCourt), Harlan Fiske Stone, George Sutherland, William Howard Taft, Willis Van Devanter
Justices Dissenting
Louis D. Brandeis, Oliver Wendell Holmes
Place
Washington, D.C.
Date of Decision
8 June 1925
Decision
Found Gitlow's conviction was constitutional.
Significance
Twofold: reinforced the then-common legal opinion that provocative politicalopinions which could be threatening enough to the public interest that freedom of speech could be abridged to silence it, but also was the first time theSupreme Court fully embraced the idea that the Fourteenth Amendment barred the states from denying their citizens freedom of speech without due process.
On 11 November 1919, New York City police officers raided the office of Benjamin Gitlow, a former city assemblyman from the Bronx, and Jim Larkin, a labororganizer, and filed against them charges of criminal anarchy. The two weremembers of the Communist Party, a radical offshoot of the Socialist Party, which they found to be too mainstream. The pair published a newspaper, The Revolutionary Age, and in it they had published the intellectual bible oftheir party, a treatise they called "The Left-Wing Manifesto." This manifestocalled for the overthrow of the U.S. government and its capitalist system byviolent revolution, and spelled out how this revolution was to take place, but did not specifically urge anyone to take action along these lines.

It is not a problem of immediate revolution. It is a problem of the immediate revolutionary struggle. The revolutionary epoch of the final struggle against Capitalism may last for years and tens of years; but the Communist International offers a policy and program immediate and ultimate in scope, thatprovides for the immediate class struggle against Capitalism, in its revolutionary implications, and for the final act of the conquest of power. The old order is in decay. Civilization is in collapse. The proletarian revolution andthe communist reconstruction of society-- the struggle for these--is now indispensable.

Gitlow was convicted on the charges, and the conviction was upheld in the appellate court. In 1923 his case was heard by the U.S. Supreme Court. Defense attorney Walter Pollak issued one of his generation's most spirited and eloquent pleas for freedom of speech, saying:

The citizen's liberty totake part in public affairs stands on another and broader footing. His exercise of his right is free not only in his own interest, but in the interest ofthe whole community. It is not for his benefit alone that he is permitted toexpress his views of law, government and politics, and propose his remedies.His views may be silly, his remedies preposterous. Their mere utterance creates some danger that unthinking members of the community may undertake to actupon them. But he is not to be punished either for their utterance--for the danger inherent in the doctrines themselves, as distinct from the danger arising from their utterance in particular circumstances. The citizen has a rightto express, for the state may have an interest in hearing, any doctrine. Freegovernment is premised upon the proposition that no human agency other thanthe ultimate good sense of the whole community can be trusted with power to gauge the dangerous tendency of mere expression of political doctrine. The utterance even of dangerous folly may be a valuable index of the need of wisdom.Folly may suggest wisdom. The liberty of opinion and expression which is essential to free government and which the Constitution protects, is thus an immunity from prosecution because of the intrinsic quality of the ideas expressed.

Victory for Free Speech
Ironically enough, when the Court finally ruled on the Gitlow case atthe end of the following term in 1925, the ruling was that Gitlow's conviction was proper, but the significance of the case was a victory for freedom of speech. The reason was that two separate questions were involved in the Gitlow appeal. Both were questions which had been addressed numerous times by U.S. courts at all levels, up to and including the Supreme Court: One of the issues received the same judgment which had been fashionable in previous decisions, while the other for the first time was decided with a much differentverdict.
The big change was that for the first time the Court decided that the Fourteenth Amendment, which forbade the states to deprive citizens of their libertywithout due process of law, also forbade them to deny their citizens freedomof speech without due process.

For present purposes we may and doassume that freedom of speech and of the press--which are protected by the First Amendment from abridgement 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.

This was the exact opposite of several rulings from the nineteenth century. In fact, the precedent, which had been cited many times and which seemed written in stone, held that the "liberty" referred to in the Fourteenth Amendmentmerely restricted the states from exacting physical restraints, such as imprisonment or confiscation of property, without due process. The other provisions of the Bill of Rights, i.e., freedom of speech, the press, religion, were all only binding to the federal government, and the individual states were free to agree with or ignore these freedoms as they saw fit. Over the first twodecades of the twentieth century the Court had begun to waffle on the issue,sometimes hedging on the question, and sometimes declining to address it, butJustice Sanford's opinion on the Gitlow case was still an alarming step toward freedom of speech and away from states' rights.
That left, then, the second question of the trial, that of whether the stateof New York had ample reason to deny Gitlow his freedom of speech to protectthe public interest. The Court ruled, not unusually according to the sentiments of the times, that the manifesto was a threat to public stability and Gitlow's conviction was proper and just. Justice Sanford explained:

When the legislative body has determined generally, in the constitutional exercise of its discretion, that utterances of a certain kind involve the dangerof substantive evil that they may be punished, the question whether any specific utterance coming within the specified class is likely, in and of itself,to bring about the substantive evil, is not open to consideration.

The dissent, by Justices Holmes and Brandeis, would come to be the litmus test on freedom of speech issues in the coming decades:

If what I think the correct test is applied, it is manifest that there was no present danger of an attempt to overthrow the government by force on the part of the admittedly small minority who shared the defendant's views. It is said that thismanifesto was more than a theory, that it was an incitement. Every idea is an incitement. It offers itself for belief and if believed it is acted upon unless some other belief outweighs it or some failure of energy stifles the movement at birth. The only difference between the expression of an opinion andan 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. If in the long run the benefits expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way.

Related Cases

• Stromberg v. California, 283 U.S. 359 (1931).
  
• Chaplinsky v. New Hampshire, 315 U.S. 568 (1942).
  
• Feiner v. New York, 340 U.S. 315 (1951).
  
• Dennis v. United States, 341 U.S. 494 (1951).
  
• Bigelow v. Virginia, 421 U.S. 809 (1975).
  
• R.A.V. v. City of St. Paul, 505 U.S. 377 (1992).

Criminal Anarchy
Criminal anarchy is advocating, through either speech or writing, the overthrow of organized government by force, violence, or assassination. The term sedition is synonymous with criminal anarchy.
Sporadically in U.S. history, states became concerned about radical activities within their borders. They often felt the need to minimize threats by limiting free speech, free press, and free assembly through passage of criminal anarchy or sedition laws. New York's Criminal Anarchy Act appeared in 1902 after assassination of President William McKinley by a professed anarchist.
By 1919, following the Bolshevik Revolution in Russia, the end of World War I, and the emergence of labor unrest in the United States, Americans became fearful that revolution might erupt at home. Thirty-three states enacted sedition or criminal syndicalist (organized group) laws. These felony laws expandedcriminal anarchy to include any individual or organization seeking politicalor industrial reform through crime, sabotage, or violence. Any person allowing the assembly of anarchists in a building could also be charged. Socialists, Communists, and members of labor unions were frequently singled out for prosecution. Doctrines of Fascism, Nazism, and Communism led to renewed fears ofanarchism during the 1940s and 1950s. Civil rights unrest in the 1960s likewise produced these reactions.
Sources
Murray, Robert K. Red Scare: A Study of National Hysteria, 1919-1920.New York: McGraw-Hill Book Company, 1964.