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Gitlow v. New York

Gitlow v. New York, 268 U.S. 652, 45 S. Ct. 625, 69 L. Ed. 1138, is a 1925 decision by the Supreme Court that upheld the constitutionality of criminal ANARCHY statutes.

The defendant, Benjamin Gitlow, was a member of the Left Wing Section, a splinter group of the Socialist Party. The group formed in opposition to the party's dominant policy of "moderate socialism," and criticized the party for its insistence on introducing SOCIALISM through the legislative process. The Left Wing Section advocated change through militant and revolutionary means. It viewed mass industrial revolution as the mechanism by which the parliamentary state would be destroyed and replaced by a system of communist socialism.

Gitlow was responsible for publishing and disseminating the group's views. He did so in such pamphlets as the "The Left Wing Manifesto." The manifesto was also published in The Revolutionary Age, the official paper of the Left Wing. The opinions expressed in these publications formed the bases for the defendant's convictions under Sections 160 and 161 of the penal law of New York, which were the criminal anarchy statutes.

Section 160 defined criminal anarchy and prescribed that the verbal or written advocacy of the doctrine be treated as a felony. Section 161 delineated the conduct that constituted the crime of advocacy of criminal anarchy and stated that its punishment be imprisonment, a fine, or both. The proscribed conduct consisted of the verbal or written advertisement or teaching of the duty, necessity, or propriety of over-throwing organized government by violence, assassination, or other unlawful acts. A person was also prohibited from publishing, editing, knowingly circulating, or publicly displaying any writing embodying this doctrine.

There was a two-count indictment against Gitlow. The first charged that the defendant had advocated, advised, and taught the duty, necessity, and propriety of unlawfully overthrowing organized government through "The Left Wing Manifesto." The second count charged that he had printed, published, knowingly circulated, and distributed The Revolutionary Age, containing the writings set forth in the first count advocating the doctrine of criminal anarchy.

In his appeal, Gitlow argued that Left Wing publications had resulted in no real action. Because they were merely utterances, he contended that the New York state laws violated the right of free speech protected by the FIRST AMENDMENT. In sustaining the defendant's conviction, the U.S. Supreme Court assumed that the DUE PROCESS CLAUSE of the FOURTEENTH AMENDMENT prevented the states from impairing the freedoms guaranteed by the First Amendment. The Court also noted that the statutes did not penalize the "utterance or publication of abstract doctrine or academic theory having no propensity to incite concrete action." It found that Gitlow's publications used language advocating, advising, or teaching the over-throw of organized government by unlawful means, and that such language implied an urging to action.

The Court reasoned that revolutionary actions called for in Gitlow's publications, including mass industrial uprisings and political mass strikes, implied the use of force and violence. Such actions are inherently unlawful in a democratic system of government. It ruled that freedom of expression does not grant an individual the absolute right to speak or publish, nor does it offer unqualified IMMUNITY from punishment for every possible utterance or publication. The state, in the exercise of its POLICE POWER, is allowed to punish anyone who abuses the FREEDOM OF SPEECH and press by utterances that are adverse to the public welfare, tend to corrupt public morals, incite to crime, or breach the public peace. As part of its primary and essential right of self-preservation, a state can penalize any expression that imperils the foundations of organized government and threatens its over-throw by unlawful means. The Court cautioned, however, that enforcement of state statutes cannot be ARBITRARY or unreasonable.

In subsequent cases (for example, Brandenburg v. Ohio, 395 U.S. 444, 89 S. Ct. 1827, 23 L. Ed. 2d 430 [1969]; Hess v. Indiana, 414 U.S. 105, 94 S. Ct. 326, 30 L. Ed. 2d 303 [1973]), the Court rejected the "dangerous tendency" doctrine it formulated in Gitlow, that incitement to action is implicit in utterances that advocate unlawful acts. The Court subsequently held that states may only prohibit utterances that directly incite lawless action or advocate individuals to imminently take lawless action.


Levinson, Nan. 2003. Outspoken: Free Speech Stories. Berkeley: Univ. of California Press.

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Law Library - American Law and Legal InformationNotable Trials and Court Cases - 1918 to 1940