Supreme Court decision
By: Edward Sanford and Oliver Wendell Holmes Jr.
Date: June 8, 1920
Source: Gitlow v. People of State of New York 268 U.S. 652 (1925). Available online at http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&v... ; website home page: http://caselaw.lp.findlaw.com (accessed February 7, 2003).
About the Authors: Edward Sanford (1865–1930) was appointed to the court in 1923 by President Harding (served 1921–1923). One of his most well-known decisions held that, in addition to the federal government, states must uphold some provisions of the Bill of Rights.
Oliver Wendell Holmes Jr. (1841–1935) served in the Union army in the Civil War. In 1902, President Theodore Roosevelt (served 1901–1909) appointed him associate justice to the United States Supreme Court. He did not resign until 1932.
Free speech was not a topic discussed often in Supreme Court decisions in the nineteenth century. Schenck v. U.S. represented the first time in the twentieth century that free speech came across the docket. That case upheld the Espionage Act and suggested that speech could be repressed when it presented a "clear and present danger" to the United States. The Supreme Court continued in this vein, as all six cases involving the Espionage and Sedition Acts upheld the Schenck precedent. However, in Abrams v. U.S., a second strand of free speech thought appeared in the Court. Abrams had been convicted for disseminating leaflets opposing the United States intervention in the Russian Revolution. In his dissent in that case, Justice Holmes suggested that Schenck had been correctly decided, but that Abrams did not present a clear and present danger. Holmes argued that in general, "the ultimate good is better reached by free trade in ideas." Thus, Holmes suggested that free speech needed to be protected.
All six of the Espionage and Sedition Act cases brought before the Court involved federal law. The law in Gitlow, though, was a state law preventing criminal anarchy, which brought up the question of which free speech guarantees the states had to respect. The First Amendment only restricted Congress, and the question arose as to what controls are placed on state laws. Barron v. Baltimore (1833) had held that the Bill of Rights did not apply to the states. The Fourteenth Amendment applied due process guarantees against the states, but the definition of due process remained in question. The Supreme Court in 1884 held that due process did not include requirements of a grand jury indictment or the privilege against self-incrimination, but they had not dealt with the issue of free speech. In Gitlow, they addressed that issue for the first time when they examined the conviction of a Communist Party leader.
Though the Court upheld Gitlow's conviction, it significantly expanded the definition of "due process" to include freedom of speech and the press inside its protection. This, in turn, increased the amount of speech state laws had to permit. The court next revisited the issue in Whitney v. California, upholding a state law prohibiting syndicalism (supporting the overthrow of the government), and upholding the conviction of Anna Whitney for her membership in the Communist Labor Party of America. In the 1931 case of Stromberg v. California, the Supreme Court specifically incorporated the First Amendment into the Fourteenth Amendment, striking down a state law which prohibited the displaying of a red flag as an element of anarchism. The law was struck down because it was so broadly worded as to allow the state to imprison those who were protesting peacefully and civilly and thus well within their First Amendment rights. In that same year, the Supreme Court struck down a Minnesota law that broadly banned "malicious, scandalous, or defamatory" newspapers as also being so broad as to violate the First Amendment. The Supreme Court also began, in the famous Scottsboro Boys cases, to expand the due process clause to include some guarantees of a fair trial, which began to weaken the court's 1884 decision. It was not until the Warren Court, however, that the due process clause was broadened to near the width it had at the end of the twentieth century, prohibiting the use of evidence seized illegally, establishing the right to counsel, and forcing states to read prisoners their rights. By 1969, only seven of the twenty-six provisions of the Bill of Rights had not been incorporated against the states. Thus, Gitlow was the first step toward a nationalization of the Bill of Rights.
Primary Source: Gitlow v. New York [excerpt]
SYNOPSIS: Justice Sanford first states that Gitlow's pamphlet is not abstract and therefore not immunefrom prosecution. He establishes the state's right to limit freedom of speech when it is abused. Then he upholds Gitlow's conviction under the law. Holmes' dissent states that Gitlow's pamphlet had no hope of inciting any revolution. The case was argued on November 23, 1923, and decided on June 8, 1925.
Mr. Justice Sanford delivered the opinion of the Court.…
The precise question presented, and the only question which we can consider under this writ of error, then is, whether the statute, as construed and applied in this case, by the State courts, deprived the defendant of his liberty of expression in violation of the due process clause of the Fourteenth Amendment.
The statute does not penalize the utterance or publication of abstract "doctrine" or academic discussion having no quality of incitement to any concrete action. It is not aimed against mere historical or philosophical essays. It does not restrain the advocacy of changes in the form of government by constitutional and lawful means. What it prohibits is language advocating, advising or teaching the overthrow of organized government by unlawful means.…
The Manifesto, plainly, is neither the statement of abstract doctrine nor, as suggested by counsel, mere prediction that industrial disturbances and revolutionary mass strikes will result spontaneously in an inevitable process of evolution in the economic system. It advocates and urges in fervent language mass action which shall progressively foment industrial disturbances and through political mass strikes and revolutionary mass action overthrow and destroy organized parliamentary government. It concludes with a call to action in these words:
The proletariat revolution and the Communist reconstruction of society—;the struggle for these—;is now indispensable.… The Communist International calls the proletariat of the world to the final struggle!
This is not the expression of philosophical abstraction, the mere prediction of future events; it is the language of direct incitement.…
For present purposes we may and do assume that freedom of speech and of the press—;which are 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.…
It is a fundamental principle, long established, that the freedom of speech and of the press which is secured by the Constitution, does not confer an absolute right to speak or publish, without responsibility, whatever one may choose, or an unrestricted and unbridled license that gives immunity for every possible use of language and prevents the punishment of those who abuse this freedom.…
That a State in the exercise of its police power may punish those who abuse this freedom by utterances inimical to the public welfare, tending to corrupt public morals, incite to crime, or disturb the public peace, is not open to question.…
By enacting the present statute the State has determined, through its legislative body, that utterances advocating the overthrow of organized government by force, violence and unlawful means, are so inimical to the general welfare and involve such danger of substantive evil that they may be penalized in the exercise of its police power. That determination must be given great weight. Every presumption is to be indulged in favor of the validity of the statute.… That utterances inciting to the overthrow of organized government by unlawful means, present a sufficient danger of substantive evil to bring their punishment within the range of legislative discretion, is clear. Such utterances, by their very nature, involve danger to the public peace and to the security of the State. They threaten breaches of the peace and ultimate revolution. And the immediate danger is none the less real and substantial, because the effect of a given utterance cannot be accurately foreseen. The State cannot reasonably be required to measure the danger from every such utterance in the nice balance of a jeweler's scale. A single revolutionary spark may kindle a fire that, smouldering for a time, may burst into a sweeping and destructive conflagration.…
We cannot hold that the present statute is an arbitrary or unreasonable exercise of the police power of the State unwarrantably infringing the freedom of speech or press; and we must and do sustain its constitutionality.…
the judgment of the Court of Appeals is Affirmed.
Mr. Justice Holmes (dissenting).
… If what I think the correct test is applied it is manifest that there was no present danger of an attempt to overthrow the government by force on the part of the admittedly small minority who shared the defendant's views. It is said that this manifesto was more than a theory, that it was an incitement. Every idea is an incitement. It offers itself for belief and if believed it is acted on unless some other belief outweighs it or some failure of energy stifles the movement at its birth. 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.…
If the publication of this document had been laid as an attempt to induce an uprising against government at once and not at some indefinite time in the future it would have presented a different question. The object would have been one with which the law might deal, subject to the doubt whether there was any danger that the publication could produce any result, or in other words, whether it was not futile and too remote from possible consequences. But the indictment alleges the publication and nothing more.
Eastlan, Terry. Freedom of Expression in the Supreme Court: The Defining Cases. Washington, D.C.: Rowman & Littlefield, 2000.
Gitlow, Benjamin. Gitlow v. New York. Wilmington, Del.: Michael Glazier, 1978.
Gitlow, Benjamin, and Clarence Darrow and Bartow S. Weeks. The "Red Ruby" Address to the Jury. New York: Labor Party, United States of America, 1920.
Gitlow, Benjamin, and Walter Nelles. Supreme Court of the United States, October Term, 1922, Benjamin Gitlow, Petitioner-In-Error, Against People of the State of New York, Defendant-In-Error: Brief for Petitioner In Support of Application to the Full Court for Writ of Error. New York: Hecla Press, 1922.
Worton, Stanley N. Freedom of Speech and Press. Rochelle Park, N.J.: Hayden Book Co., 1975.