Gitlow v. New York

Gitlow v. New York
Litigants	Gitlow v. New York
ArgueDate	April 12
ArgueYear	1923
DecideDate	June 8
DecideYear	1925
FullName	Benjamin Gitlow v. People of the State of New York
Citations	268 U.S. 652 (1925)
Prior	Defendant convicted, New York Supreme Court, Appellate Division; affirmed, New York Court of Appeals
Subsequent	None
Holding	The New York Criminal Anarchy Act of 1902 was constitutional as applied. The First Amendment's freedom of speech protection applies to the states through the Fourteenth Amendment's Due Process Clause, but the state statute did not violate that protection in this instance.
SCOTUS	1922–1925
Majority	Sanford
JoinMajority	Taft, Holmes, Van Devanter, McReynolds, Brandeis, Sutherland, Butler
Dissent	Holmes (in part)
JoinDissent	Brandeis
LawsApplied	U.S. Const. amends. I, XIV; N.Y. Penal Law §§ 160, 161 (1909)

Contents

Background and Facts of the Case
The Supreme Court Decision
The Incorporation Doctrine and the Fourteenth Amendment

Gitlow v. New York

Gitlow v. New York, 268 U.S. 652 (1925), is a landmark United States Supreme Court decision that fundamentally altered the relationship between the federal government and the states concerning civil liberties. While the Court upheld the criminal conviction of Benjamin Gitlow, a Socialist activist, under New York's criminal anarchy statute, it formally held for the first time that the First Amendment's protection of freedom of speech applied to the states through the Fourteenth Amendment. This ruling established a critical legal mechanism, known as the incorporation doctrine, that later became a cornerstone for the Civil Rights Movement by allowing federal courts to strike down state laws that infringed upon fundamental rights enumerated in the Bill of Rights.

Background and Facts of the Case

The case originated from the post-World War I Red Scare, a period of intense national anxiety over political radicalism. In this climate, the state of New York enforced its 1902 Criminal Anarchy Act, which made it a felony to advocate, advise, or teach the duty, necessity, or propriety of overthrowing organized government by force or violence. Benjamin Gitlow, a prominent member of the Left Wing Section of the Socialist Party, was arrested in 1919 for his role in publishing and distributing a document called the "Left Wing Manifesto." This manifesto, published in Gitlow's newspaper The Revolutionary Age, called for mass action and class struggle to establish a socialist system, using language that prosecutors argued fell under the criminal anarchy law. Gitlow was convicted in New York Supreme Court and his conviction was affirmed by the New York Court of Appeals, the state's highest court. His legal team, which included noted American Civil Liberties Union (ACLU) attorney Walter Nelles, appealed to the U.S. Supreme Court, arguing the New York statute violated Gitlow's rights to freedom of speech and freedom of the press as protected by the First Amendment.

The Supreme Court Decision

In a 7–2 decision written by Associate Justice Edward Terry Sanford, the Court affirmed Gitlow's conviction. Justice Sanford's majority opinion applied the bad tendency test, a legal principle that allowed for the punishment of speech that could tend to incite or produce dangerous actions, even if no immediate danger was present. The Court found that the "Left Wing Manifesto" was not an abstract philosophical discussion but a direct incitement to violent revolution, and that the state of New York had a legitimate interest, under its police power, in preventing the violent overthrow of its government. Notably, the majority accepted without extensive argument the defendant's premise that the First Amendment applied to the states via the Fourteenth Amendment's Due Process Clause, marking a pivotal doctrinal shift. In a famous partial dissent, Justice Oliver Wendell Holmes Jr., joined by Justice Louis Brandeis, argued for a stricter standard, contending that the speech presented no "clear and present danger" of imminent lawless action and should therefore be protected.

The Incorporation Doctrine and the Fourteenth Amendment