Gitlow v. New York

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Gitlow v. New York

Gitlow v. New York, 268 U.S. 652, 45 S. Ct. 625, 69 L. Ed. 1138, is a 1925 decision by the Supreme Court that upheld the constitutionality of criminal anarchy statutes.

The defendant, Benjamin Gitlow, was a member of the Left Wing Section, a splinter group of the Socialist Party. The group formed in opposition to the party's dominant policy of "moderate socialism," and criticized the party for its insistence on introducing Socialism through the legislative process. The Left Wing Section advocated change through militant and revolutionary means. It viewed mass industrial revolution as the mechanism by which the parliamentary state would be destroyed and replaced by a system of communist socialism.

Gitlow was responsible for publishing and disseminating the group's views. He did so in such pamphlets as the "The Left Wing Manifesto." The manifesto was also published in The Revolutionary Age, the official paper of the Left Wing. The opinions expressed in these publications formed the bases for the defendant's convictions under Sections 160 and 161 of the penal law of New York, which were the criminal anarchy statutes.

Section 160 defined criminal anarchy and prescribed that the verbal or written advocacy of the doctrine be treated as a felony. Section 161 delineated the conduct that constituted the crime of advocacy of criminal anarchy and stated that its punishment be imprisonment, a fine, or both. The proscribed conduct consisted of the verbal or written advertisement or teaching of the duty, necessity, or propriety of over-throwing organized government by violence, assassination, or other unlawful acts. A person was also prohibited from publishing, editing, knowingly circulating, or publicly displaying any writing embodying this doctrine.

There was a two-count indictment against Gitlow. The first charged that the defendant had advocated, advised, and taught the duty, necessity, and propriety of unlawfully overthrowing organized government through "The Left Wing Manifesto." The second count charged that he had printed, published, knowingly circulated, and distributed The Revolutionary Age, containing the writings set forth in the first count advocating the doctrine of criminal anarchy.

In his appeal, Gitlow argued that Left Wing publications had resulted in no real action. Because they were merely utterances, he contended that the New York state laws violated the right of free speech protected by the First Amendment. In sustaining the defendant's conviction, the U.S. Supreme Court assumed that the due process clause of the Fourteenth Amendment prevented the states from impairing the freedoms guaranteed by the First Amendment. The Court also noted that the statutes did not penalize the "utterance or publication of abstract doctrine or academic theory having no propensity to incite concrete action." It found that Gitlow's publications used language advocating, advising, or teaching the over-throw of organized government by unlawful means, and that such language implied an urging to action.

The Court reasoned that revolutionary actions called for in Gitlow's publications, including mass industrial uprisings and political mass strikes, implied the use of force and violence. Such actions are inherently unlawful in a democratic system of government. It ruled that freedom of expression does not grant an individual the absolute right to speak or publish, nor does it offer unqualified Immunity from punishment for every possible utterance or publication. The state, in the exercise of its Police Power, is allowed to punish anyone who abuses the Freedom of Speech and press by utterances that are adverse to the public welfare, tend to corrupt public morals, incite to crime, or breach the public peace. As part of its primary and essential right of self-preservation, a state can penalize any expression that imperils the foundations of organized government and threatens its over-throw by unlawful means. The Court cautioned, however, that enforcement of state statutes cannot be Arbitrary or unreasonable.

In subsequent cases (for example, Brandenburg v. Ohio, 395 U.S. 444, 89 S. Ct. 1827, 23 L. Ed. 2d 430 [1969]; Hess v. Indiana, 414 U.S. 105, 94 S. Ct. 326, 30 L. Ed. 2d 303 [1973]), the Court rejected the "dangerous tendency" doctrine it formulated in Gitlow, that incitement to action is implicit in utterances that advocate unlawful acts. The Court subsequently held that states may only prohibit utterances that directly incite lawless action or advocate individuals to imminently take lawless action.

Further readings

Levinson, Nan. 2003. Outspoken: Free Speech Stories. Berkeley: Univ. of California Press.


Anarchism; Communism; Due Process of Law; Incorporation Doctrine.

References in periodicals archive ?
As far back as the spring of 2015, American Society of Addiction Medicine (ASAM) past president Stuart Gitlow, MD, was writing this in an e-mailed response to an inquiry from me:
Henry and Gitlow (2011) reported that non-Generation Y students agreed more strongly than Generation Y students that students should encourage their peers to follow class rules.
Because the First Amendment was incorporated to the states in Gitlow v.
United States and defended in his Abrams dissent, Schenck was sent to prison with it, while Abrams, Gitlow, Dennis, and many others were sent to prison despite it.
Diversos estudios indican que la Universidad, en ocasiones, no esta suficientemente preparada para incluir al alumnado con discapacidad; asi, por ejemplo, Gitlow (2001) refleja la importancia del asesoramiento y formacion de los docentes para que sean estos quienes mejoren la respuesta hacia la diversidad.
The qualifying phrase tend to incite a breach of the peace, on the other hand, should be equated with the fighting or insulting words, if we are to reconcile later cases that continue to apply either of the two factual teststhe clear and present danger rule of Justice Holmes in the Schenck case or the dangerous tendency rule enunciated in 1925 in Gitlow vs New York.
See Letter, dated November 6, 2012, from Acting President Stuart Gitlow, MD, MBA, MPH, FAPA, American Association of Addiction Medicine to FDA Commissioner Margaret A.
This is slightly counterintuitive, because the natural--although erroneous--assumption is that the Holmesian approach would always counsel upholding government action, implying a dissent in Lochner but a vote with the majority in Gitlow.
Trust Dated March 1995, to Gitlow Family Trust; 6 Onadoone Crt, Florence, 97439; $270,000.
The roll-call is familiar--from Justice Curtis in Dred Scott, (62) to the first Justice Harlan in Plessy, (63) to Justice Holmes in Gitlow (64) and Lochner, (65) to Justice Brandeis in Olmstead, (66) to Justice Jackson in Korematsu.
Greengarten-Jackson, Jill, Siew Choi Yau, Howard Gitlow, and Terri A.