Gitlow v. New York: Can States Prohibit Politically Threatening Speech?

Ruling on whether states can punish speech that calls for government overthrow

Illustration of two silhouettes. One figure is painting over the other figure's speech bubble.
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Gitlow v. New York (1925) examined the case of a Socialist Party member who published a pamphlet advocating for a government overthrow and was subsequently convicted by the state of New York. The Supreme Court ruled that it was constitutional to suppress Gitlow's speech in that instance because the state had a right to protect its citizens from violence. (This position was later reversed in the 1930s.)

More broadly, however, the Gitlow ruling expanded the reach of the U.S Constitution's First Amendment protections. In the decision, the court determined that First Amendment protections applied to state governments as well as the federal government. The decision used the Due Process Clause of the Fourteenth Amendment to establish the “incorporation principle,” which helped advance civil rights litigation for decades to come.

Facts of the Case

In 1919, Benjamin Gitlow was a member of the Left Wing section of the Socialist Party. He managed a paper whose headquarters doubled as an organizing space for members of his political party. Gitlow used his position at the paper to order and distribute copies of a pamphlet called the “Left Wing Manifesto.” The pamphlet called for the rise of socialism through revolt against the government using organized political strikes and any other means.

After distributing the pamphlet, Gitlow was indicted and convicted by the Supreme Court of New York under the New York’s Criminal Anarchy Law.

The Criminal Anarchy Law, which was adopted in 1902, prohibited anyone from spreading the idea that the U.S. government should be overthrown through force or any other unlawful means.

Constitutional Issues

Gitlow’s attorneys appealed the case to the highest level: the U.S. Supreme Court. The Court was tasked with deciding whether New York’s Criminal Anarchy Law violated the First Amendment of the United States Constitution.

Under the First Amendment, can a state prohibit individual speech if that speech calls for overthrowing of the government?

The Arguments

Gitlow’s attorneys argued that the Criminal Anarchy Law was unconstitutional. They asserted that, that under the Due Process Clause of the Fourteenth Amendment, states could not create laws that violated  First Amendment protections. According to Gitlow’s attorneys, the Criminal Anarchy Law unconstitutionally suppressed Gitlow’s right to free speech. Furthermore, they argued, under Schenck v. U.S., the state needed to prove that the pamphlets created a “clear and present danger” to the U.S. government in order to suppress the speech. Gitlow’s pamphlets had not resulted in harm, violence, or the overthrowing of the government.

Counsel for the state of New York argued that the state had a right to prohibit threatening speech. Gitlow’s pamphlets advocated for violence and the state could constitutionally suppress them in the interest of safety. Counsel for New York also argued that the Supreme Court should not meddle in state affairs, asserting that the First Amendment of the U.S. Constitution should remain exclusively part of the federal system because the New York State Constitution adequately protected Gitlow’s rights.

Majority Opinion

Justice Edward Sanford delivered the opinion of the court in 1925. The Court found that the Criminal Anarchy Law was constitutional because the state had a right to protect its citizens from violence. New York could not be expected to wait for violence to break out before suppressing speech advocating for that violence. Justice Sanford wrote,

“[T]he immediate danger is none the less real and substantial, because the effect of a given utterance cannot be accurately foreseen.” 

Consequently, the fact that no actual violence had come from the pamphlets was irrelevant to the Justices. The Court drew upon two previous cases, Schenck v. U.S. and Abrams v. U.S., to demonstrate that the First Amendment was not absolute in its protection of free speech. Under Schenck, speech could be limited if the government could demonstrate that the words created a “clear and present danger.” In Gitlow, the Court partially overturned Schenck, because the Justices did not adhere to the “clear and present danger” test.

Instead, they reasoned that a person simply needed to show a “bad tendency” for speech to be suppressed.

The Court also found that the First Amendment of the Bill of Rights was meant to apply to state laws as well as federal laws. The due process clause of the Fourteenth Amendment reads that no state can pass a law that deprives any person of life, liberty, or property. The court interpreted “liberty” as the freedoms listed in the Bill of Rights (speech, the exercise of religion, etc.). Therefore, through the Fourteenth Amendment, states have to respect the first amendment right to freedom of speech. Justice Sanford's opinion explained:

“For present purposes we may and do assume that freedom of speech and of the press — which is protected by the First Amendment from abridgment 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.”

Dissenting Opinion

In a famous dissent, Justices Brandeis and Holmes sided with Gitlow. They did not find the Criminal Anarchy Law unconstitutional, but instead argued that it had been improperly applied. The Justices reasoned that the court should have upheld the Schenck v. U.S. decision, and that they could not show that Gitlow’s pamphlets created a “clear and present danger.” In fact, the Justices opined:

“Every idea is an incitement […]. The only difference between the expression of an opinion and an incitement in the narrower sense is the speaker's enthusiasm for the result.”

Gitlow’s actions did not meet the threshold set by the test in Schenck, the dissent argued, and thus his speech should not have been suppressed.

The Impact

The ruling was groundbreaking for several reasons. It overturned a previous case, Barron v. Baltimore, by finding that the Bill of Rights applied to the states and not just the federal government. This decision would later become known as the “incorporation principle” or the “incorporation doctrine.” It laid the groundwork for civil rights claims that would reshape American culture in the following decades.

With respect to free speech, the Court later reversed its Gitlow position. In the 1930s, the Supreme Court made it increasingly difficult to suppress speech. However, criminal anarchy laws, like the one in New York, remained in use until the late 1960s as a method of suppressing some types of political speech.

Sources

  • Gitlow v. People, 268 U.S. 653 (1925).
  • Tourek, Mary. “New York Criminal Anarchy Law Signed.” Today in Civil Liberties History, 19 Apr. 2018, todayinclh.com/?event=new-york-criminal-anarchy-law-signed.