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Gitlow v. New York
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FACTS OF CASE:
Gitlow, a socialist, was arrested for distributing copies of a "left-wing manifesto" that called for
the establishment of socialism through strikes and class action of any form. Gitlow was
convicted under a state criminal anarchy law, which punished advocating the overthrow of the
government by force. At his trial, Gitlow argued that since there was no resulting action flowing
from the manifesto's publication, the statute penalized utterences without propensity to
incitement of concrete action. The New York courts had decided that anyone who advocated the
doctrine of violent revolution violated the law.
Gitlow v. New York, 268 U.S. 652 (1925), was a decision by the United States Supreme Court,
which ruled that the Fourteenth Amendment to the U.S. Constitution had extended the reach of
certain provisions of the First Amendment—specifically the provisions protecting freedom of
speech and freedom of the press—to the governments of the individual states.
The Supreme Court previously held, in Barron v. Baltimore, 32 U.S. 243 (1833), that the
Constitution's Bill of Rights applied only to the federal government, and that, consequently, the
federal courts could not stop the enforcement of state laws that restricted the rights enumerated
in the Bill of Rights. Gitlow v. New York's partial reversal of that precedent began a trend toward
nearly complete reversal; the Supreme Court now holds that almost every provision of the Bill of
Rights applies to both the federal government and the states. The Court upheld the state law
challenged in Gitlow v. New York, which made it a crime to advocate the duty, need, or
appropriateness of overthrowing government by force or violence. The Court's ruling on the
effects of the Fourteenth Amendment was incidental to the decision, but nevertheless established
an extremely significant precedent.
As justification for its decision, the Supreme Court relied on the "due process clause" of the
Fourteenth Amendment. This provision, contained in Section One of the amendment, prohibits
any state from depriving "any person of life, liberty, or property, without due process of law."
Specifically, in its decision the Court stated that "For present purposes we may and do assume
that" the rights of freedom of speech and freedom of the press were "among the fundamental
personal rights and 'liberties' protected by the due process clause of the Fourteenth Amendment
from impairment by the states" (at 666). The Court would go on to use this logic of incorporation
much more purposefully in other cases, such as De Jonge v. Oregon, 299 U.S. 353 (1937), Wolf
v. Colorado, 338 U.S. 25 (1949), and Gideon v. Wainwright, 372 U.S. 335 (1963), to extend the
reach of the Bill of Rights. Constitutional scholars refer to this process as the "incorporation
doctrine," meaning that the Supreme Court incorporates specific rights into the due process
clause of the Fourteenth Amendment.
Gitlow v. New York was also important for defining the scope of the First Amendment's
protection of free speech following the period of the "Red Scare," in which Communists and
Socialist Party members were routinely convicted for violating the Espionage Act of 1917 and
Sedition Act of 1918. Gitlow, a Socialist, had been convicted of criminal anarchy after
publishing a "Left Wing Manifesto." The Court upheld his conviction on the basis that the
government may suppress or punish speech when it directly advocates the unlawful
overthrowing of the government.
The opinions in this case are notable for their attempt to define more clearly the "clear and
present danger" test that came out of Schenck v. United States, 249 U.S. 47 (1919). The majority
opinion written by Justice Edward Terry Sanford, embracing the bad tendency test that came out
from Abrams v. United States, 250 U.S. 616 (1919), stated 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."
In the dissenting opinion, Justice Holmes, the original author of the clear and present danger test,
disagreed, arguing 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."
See also
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List of United States Supreme Court cases, volume 268
The Smith Act, which prohibits advocacy of violent overthrow of federal and state
governments