Gitlow v. New York
268 U.S. 652 (1925)
Constitutional Topic Areas:
1st Amendment, 14th Amendment ‘Due Process Clause’, Clear and Present Danger Test, Procedural Due Process, Substantive Due Process, Appellate Jurisdiction, Bill of Rights, Federalism
Case Facts:
In 1902 the State of New York passed the Criminal Anarchy Law after President McKinley was assassinated by an anarchist the year prior. The law specifically criminalized any activism supporting a revolution against the federal government. Benjamin Gitlow, a member of both the Socialist Party of America and the New York State Assembly, published a so-called “leftwing manifesto” in the newspaper The Revolutionary Age. The “manifesto” advocated for “mass revolutionary action” including mass strikes to effectively overthrow the federal government and instate socialism. Gitlow was subsequently arrested under the Criminal Anarchy Law, as the state argued his article commissioned readers to commit a crime. Gitlow argued he could not be convicted under the law because his article’s publishing did not directly cause any uprising against the government. The state disagreed and Gitlow was found guilty and sentenced to 5-10 years in prison. He served two years before his appeal was granted by the state appellate court, which affirmed his conviction. Gitlow then appealed to the Supreme Court.
Questions:
1. Does Gitlow’s conviction under the Criminal Anarchy Law of 1902 violate his civil liberties afforded by the 14th Amendment’s Due Process Clause?
2. Does the bill of rights apply to the individual states as it does to the federal government?
Holding:
1. No
2. Yes
Legal Reasoning: Justice E.T. Sanford (7-2)
1. The Criminal Anarchy Law of 1902 does not criminalize purely historical or factual essays of “abstract doctrine”. However, the law does specifically criminalize these publications only if they advocate for overthrowing the government by unlawful means
2. According to the Clear and Present Danger Test established in Schenck v. US, states have a right to prohibit speech that is likely to result in criminal activity.
3. The key here is the call to action. Since Gitlow’s article specifically implored readers to take unlawful action against the federal government with the intent of destroying its structure, his speech is found to be reasonably likely to result in criminal activity. Therefore, Gitlow’s conviction is constitutional. In the words of Justice Sanford, a “…single revolutionary spark may kindle a fire that, smoldering for a time, may burst into a sweeping and destructive conflagration”
4. States must conform to the bill of rights guaranteed to all citizens. With respect to the 14th Amendment, we must assume that the freedoms of speech and press are included within these inalienable rights and liberties, and are therefore protected. Even though these rights are protected by the bill of rights and the 14th Amendment, the State of New York still can regulate speech relating to the incitement of a crime
Dissent: Justice O.W. Holmes, Joined By Justice L. Brandeis
1. The clear and present danger test’s key component is if the speech in question would result in imminent danger. Given the tone and context of Gitlow’s article, the call to action was not substantial or concrete enough to be considered a clear and present danger under the test
2. Since readers were unlikely to be compelled to commit crimes as commanded by the article, Gitlow’s speech should not be criminalized as there is no clear and present danger associated with it
3. Holmes also argued that every expression of opinion is a type of incitement, the only difference being the authors enthusiasm for the result. By this very fact, freedom of speech should be preserved, because “if in the long run, the beliefs 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”
Significance:
Gitlow was again imprisoned upon the Court’s ruling, but his sentence was committed early as “no additional punishment would act as a deterrent to those who would preach an erroneous doctrine of Government.” The doctrine established in Gitlow was used in numerous future cases which affirmed the application of the bill of rights to the individual states. This is known as the “incorporation doctrine” as it incorporates the expansion of the bill of rights into liberties which are protected by the 14th Amendment’s Due Process Clause
Reflection:
The 7-2 ruling is implicitly strong, meaning it is somewhat unlikely to be overturned. Gitlow was never overturned, and has been a central component to the legal reasoning behind many instances of the incorporation doctrine, namely the 2nd Amendment. However, the Supreme Court has not incorporated the 5th Amendment right to an indictment by grand jury, as well as the 7th Amendment right to a jury trial in civil lawsuits
Supreme Court Case Briefs 