Gitlow v. New York
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| Gitlow v. New York | |
| Reference: 268 U.S. 652 | |
| Term: 1925 | |
| Outcome | |
| New York Court of Appeals affirmed. | |
| Majority | |
| Pierce Butler • James McReynolds • Edward Sanford • Harlan Fiske Stone • George Sutherland • Willis Van Devanter | |
| Dissenting | |
| Louis Brandeis • Oliver Wendell Holmes | |
Gitlow v. New York is a case decided on June 8, 1925, in which the U.S. Supreme Court made First Amendment guarantees of both freedom of expression and freedom of the press binding on state governments.
Why it matters: The court's opinion in this case made First Amendment protections of free expression and free press binding on state governments via the liberty interest of the due process clause of the Fourteenth Amendment. To read more about the legacy of Gitlow v. New York click here.
Background
A New York statute made it a crime to engage in anarchy. The statute defined criminal anarchy as "the doctrine that organized government should be overthrown by force or violence, or by assassination of the executive head or of any of the executive officials of government, or by any unlawful means."
An individual was guilty of advocating criminal anarchy under the statute if he or she:[1]
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By word of mouth or writing advocates, advises or teaches the duty, necessity or propriety of overthrowing or overturning organized government by force or violence, or by assassination of the executive head or of any of the executive officials of government, or by any unlawful means; or Prints, publishes, edits, issues or knowingly circulates, sells, distributes or publicly displays any book, paper, document, or written or printed matter in any form, containing or advocating, advising or teaching the doctrine that organized government should be overthrown by force, violence or any unlawful means. [2] |
” |
If found guilty, the defendant was guilty of a felony and subject to punishment of imprisonment and/or a fine.
Benjamin Gitlow, an avowed socialist, was indicted on two counts of violating the statute. The first count was that he violated the statute through writings in a pamphlet he authored entitled The Left Wing Manifesto. The second was that he printed, published, and distributed a paper called The Revolutionary Age. Both the Manifesto and The Revolutionary Age contained materials sufficient to meet the criminal definition of "advocating criminal anarchy" under the statute. When the trial court jury was instructed to find the delineation between violence and free speech it found that "there was no evidence of any effect resulting from the publication and circulation of the 'Manifesto.'"
Based on the evidence and jury instructions, the trial court convicted Gitlow on both counts of the indictment. Gitlow's conviction was upheld by both the Appellate Division and by the New York State Court of Appeals.[1]
Legal background
During American involvement in World War I, In 1917 Congress passed the Espionage Act, a federal law that made any attempt to "interfere with the operation or success of the military or naval forces of the United States ... to cause insubordination ... in the military or armed forces ... or willfully obstruct the recruiting or enlistment service of the United States" illegal. Almost immediately, several litigants challenged these provisions, alleging Congress' inability to restrict freedom of expression and the press under the First Amendment to the United States Constitution.
In the first of these cases, Schenck v. United States (249 U.S. 47), Justice Oliver Wendell Holmes' unanimous opinion established a standard for evaluating the constitutionality of laws impinging on free expression and free press rights. This standard is commonly referred to as the clear and present danger test.[3] Holmes wrote, “The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.”
The court moved away from the clear and present danger one term later. In Abrams v. United States (250 U.S. 616), Justice John H. Clarke affirmed convictions against four petitioners for violations of the Espionage Act and grounded his ruling on the rationale that "Men must be held to have intended, and to be accountable for, the effects which their acts were likely to produce."[4]
In dissent, Justice Holmes, joined by Justice Louis Brandeis, advocated against moving away from clear and present danger, arguing that "the principle of the right to free speech is always the same. It is only the present danger of immediate evil or an intent to bring it about that warrants Congress in setting a limit to the expression of opinion where private rights are not concerned. Congress certainly cannot forbid all effort to change the mind of the country."[4]
In the aftermath of the federal Espionage Act cases the court's transitioned to what is called the bad tendency test, a test of English common law, and away from the clear and present danger test to resolve First Amendment claims of free expression and free press violations.
Oral argument
Oral argument was conducted on April 12 and November 23, 1923.[1]
Decision
The judgment of the New York Court of Appeals was affirmed.[1] Justice Edward Sanford wrote for a seven-justice majority and held that the Fourteenth Amendment prohibits states from infringing on free speech, but that Gitlow was properly convicted under another state law prohibiting anarchy.
Justice Sanford was joined by Justices Pierce Butler, James McReynolds, Harlan Fiske Stone, George Sutherland, and Willis Van Devanter.[5]
Justice Oliver Wendell Holmes wrote a dissenting opinion and was joined by Justice Louis Brandeis.[5]
Opinion
Majority opinion
Writing for a seven-justice majority, Justice Edward Sanford held that the Fourteenth Amendment prohibits states from infringing free speech, but Gitlow was properly convicted under New York's Criminal Anarchy Law because he disseminated newspapers advocating the violent overthrow of the government. Justice Sanford noted that New York's statute did 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." Sanford wrote that Gitlow's book, was the language of direct incitement to overthrow organized government:
| “ | plainly, is neither the statement of abstract doctrine nor ... , 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 action overthrow and destroy organized parliamentary government. It concludes with a call to action ... it is the language of direct incitement." | ” |
Nevertheless, Justice Sanford conceded that "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."
Thus, in Gitlow, the court incorporated the First Amendment protections of freedom of expression and freedom of the press to state governments, holding that denying these provisions would deny the liberty interest of the Fourteenth Amendment's due process clause, which the Fourteenth Amendment prohibits states from doing.[1]
Despite incorporating the freedoms of expression and of the press to state governments, Justice Sanford acknowledged the state's ability to restrict these freedoms in certain instances:
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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 ... 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. [2] |
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Justice Sanford next turned to a discussion of why the "clear and present danger" test was not applicable in this particular dispute:
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the general statement in the Schenck Case, that the 'question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils,' - upon which great reliance is placed in the defendant's argument - was manifestly intended, as shown by the context, to apply only in cases of this class, and has no application to those like the present, where the legislative body itself has previously determined the danger of substantive evil arising from utterances of a specified character. [2] |
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In holding that the clear and present danger test was not applicable to the statute in question, Justice Sanford held that the statute's purposes were consistent, under the bad tendency test, with permissible restrictions on freedom of expression and of the press under a state's police powers. As such, Gitlow's First Amendment claims were rejected and his conviction was upheld by the court.
Dissenting opinion
Joined by Justice Brandeis in dissent, Justice Holmes argued, as he did in Abrams, that the only test for free expression and free press cases should be the "clear and present danger" test:
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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 in the long run the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way. [2] |
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Legacy
The court's opinion in this case made First Amendment protections of free expression and free press binding on state governments via the liberty interest of the due process clause of the Fourteenth Amendment. The clause, ratified as part of the amendment in 1868, says that "...nor shall any State deprive any person of life, liberty, or property without due process of law." Thus, in the court's view, to deny certain liberties would deny due process, which the Fourteenth Amendment prohibits state governments from doing. This practice of making certain provisions of the Bill of Rights binding on state governments through a Supreme Court decision is known as incorporation. Thus, when the Supreme Court makes a protection of the Bill of Rights binding on a state, the court is said to have incorporated that right to state governments.
This case, however, lowered the standards for a valid government regulation of free speech and free press. The bad tendency test, as used in common law, is a test that permits regulation of speech and press if the words have a tendency to bring about something evil. This test was used by federal courts until the 1930s, when post-war fears subsided and a general trend toward peacetime standards for free speech and press returned.
See also
External links
Footnotes
- ↑ 1.0 1.1 1.2 1.3 1.4 Supreme Court of the United States (via Findlaw), Gitlow v. New York, decided June 8, 1925
- ↑ 2.0 2.1 2.2 2.3 2.4 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
- ↑ Supreme Court of the United States (via Findlaw), Schenck v. United States, decided March 3, 1919
- ↑ 4.0 4.1 Supreme Court of the United States (via Findlaw), Abrams v. United States, decided November 10, 1919
- ↑ 5.0 5.1 Oyez, Gitlow v. New York, accessed October 6, 2022
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