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G, Gitlow v. New York,

Edited By: Kermit L. Hall, James W. Ely Jr., Joel B. Grossman

From: The Oxford Companion to the Supreme Court of the United States (2nd Edition)

Edited By: Kermit L. Hall

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2021. All Rights Reserved. Subscriber: null; date: 16 January 2021

Gitlow v. New York,

268 U.S. 652 (1925), argued 12 Apr. 1923, reargued 23 Nov. 1923, decided 8 June 1925 by vote of 7 to 2; Sanford for the Court, Holmes and Brandeis in dissent. The landmark Gitlow case marks the beginning of the “incorporation” of the *First Amendment as a limitation on the states. This process, which continued selectively over the next fifty years, resulted in major changes in the modern law of *civil liberties, affording citizens a federal remedy if the states deprived them of their *fundamental rights. Ironically, however, the Court rejected Gitlow’s free speech claim. At the time, the ruling’s significance was largely doctrinal.

Benjamin Gitlow was a member of the left-wing section of the Socialist party. He was convicted for violating the New York Criminal Anarchy Law of 1902, which made it a crime to advocate the violent overthrow of the government. Specifically, he had been arrested during the 1920 red scare for writing, publishing and distributing sixteen thousand copies of a pamphlet called Left-wing Manifesto that urged the establishment of socialism by strikes and “class action … in any form.” He was also charged with being an “evil disposed and pernicious person,” with a “wicked and turbulent disposition,” who tried to “excite discontent and disaffection.” At his trial, the famed attorney Clarence Darrow sought to frame the entire issue as one of freedom of speech on the grounds that the (p. 395) Left-wing Manifesto advocated nothing but urged abstract doctrine. The New York court, however, ruled that Communists had to be held responsible for the potential danger of their abstract concepts and upheld the conviction.

The Supreme Court used the case as an occasion to examine the concept that the speech and press protections of the First Amendment should be extended to the states. Gitlow’s brief, prepared by the brilliant *ACLU lawyer Walter H. *Pollak, argued persuasively that liberty of expression was a right to be protected against state abridgment. This, he contended, was established by the authoritative determination of the meaning of liberty as used in the *Fourteenth Amendment and by implicit declarations with respect to the related right of free assembly. The Court was impressed. Justice Edward T. *Sanford, speaking for the majority, agreed that “for present purposes, we may and do assume that freedom of speech and of the press … are among the fundamental personal rights and ‘liberties’ protected by the *due process clause of the Fourteenth Amendment from impairment by the States” (p. 666). He nonetheless sustained the New York law and upheld Gitlow’s conviction. “[A] state may punish utterances endangering the foundations of organized government and threatening its overthrow by unlawful means,” Sanford wrote (p. 667). Gitlow’s pamphlet, while not immediately inciting criminal action, could be viewed as a “revolutionary spark” that might at some later time burst into “sweeping and destructive conflagration” (p. 669).

Justice Oliver Wendell *Holmes wrote a famous dissent in which Justice Louis D. *Brandeis concurred. He disagreed with the majority’s ruling that words separated from action could be punished. Holmes declared, “The only difference between the expression of an opinion and an 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” (p. 673). This view, which called for punishment of action, not expression, under the *clear and present danger doctrine, was to be embraced by the Supreme Court in the 1960s.

The Gitlow decision launched “incorporation” of the First Amendment. It was not until *Stromberg v. California (1931), however, that the Court actually ruled a state law unconstitutional on First Amendment free speech grounds.

See also incorporation doctrine; speech and the press.

Paul L. Murphy