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, 652, 1925
Prior	Defendant convicted, Appellate Division affirmed, New York Court of Appeals affirmed.
Subsequent	None
Holding	The New York Criminal Anarchy Act was constitutional as applied. The First Amendment's freedom of speech protections apply to the states via the Fourteenth Amendment's Due Process Clause.
SCOTUS	1922–1925
Majority	Sanford
JoinMajority	Taft, McReynolds, Sutherland, Butler, Stone
Dissent	Holmes
JoinDissent	Brandeis
LawsApplied	New York Criminal Anarchy Act; U.S. Const. amends. I, XIV

Contents

Background and Facts of the Case
The Supreme Court Decision
Incorporation of the First 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 Bill of Rights and state governments. The case is most significant for its ruling that the First Amendment's protection of freedom of speech applied to the states through the Fourteenth Amendment's Due Process Clause, a principle known as incorporation. While the Court upheld the conviction of Benjamin Gitlow, a Socialist activist, under New York's criminal anarchy law, its doctrinal shift laid essential groundwork for the judicial activism that would later protect Civil Rights Movement activists and dissident speech.

Background and Facts of the Case

The case arose during the First Red Scare, a period of intense anti-radical and anti-immigrant sentiment following World War I and the Russian Revolution. 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 the "Left Wing Manifesto" in the newspaper The Revolutionary Age. The manifesto called for mass action, general strikes, and revolutionary overthrow of the U.S. government. New York authorities charged Gitlow under the state's Criminal Anarchy Act of 1902, a law that made it a felony to advocate, advise, or teach the duty, necessity, or propriety of overthrowing organized government by force or violence.

Gitlow's defense, led by attorneys including noted civil liberties lawyer Walter Nelles, argued that the statute was an unconstitutional restriction on political speech and that the manifesto presented abstract doctrine, not an immediate incitement to lawless action. The New York Court of Appeals upheld his conviction, setting the stage for an appeal to the U.S. Supreme Court. The legal context was defined by the Court's earlier decision in Schenck v. United States (1919), which established the clear and present danger test but had not yet been applied to state laws.

The Supreme Court Decision

In a 7–2 decision written by Justice Edward Terry Sanford, the Supreme Court affirmed Gitlow's conviction. The majority accepted the state legislature's determination that advocating the overthrow of government was a "substantive evil" that the state had the police power to prevent. The Court applied a version of the bad tendency test, ruling that speech could be punished if it had a tendency to lead to dangerous consequences, even without proof of immediate danger. The Court found that Gitlow's manifesto was not a mere philosophical discussion but a "direct incitement" to action.

Crucially, however, Justice Sanford's opinion contained a pivotal assumption that would become the case's enduring legacy. The Court explicitly assumed "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." This was the first time the Supreme Court held that the First Amendment applied to state governments, marking a critical step in the incorporation doctrine.

Incorporation of the First Amendment

The Gitlow decision initiated the process of selective incorporation, whereby protections in the Bill of Rights are applied to the states one by one through the Fourteenth Amendment. While the Court used this new principle to uphold a conviction, it established a constitutional mechanism that future justices would use to strike down state laws infringing on fundamental liberties. This doctrinal shift empowered the federal judiciary to serve as a protector of individual rights against state overreach, a role that became central during the Civil Rights Movement of the 1950s and 1960s.