- Gitlow v. New York
Litigants=Gitlow v. New York
Benjamin Gitlowv. People of the State of New York
Citation=45 S. Ct. 625; 69 L. Ed. 1138; 1925 U.S. LEXIS 598
Prior=Defendant convicted, Supreme Court of New York County, 2-5-20; affirmed, 195 A.D. 773 (N.Y. Sup.Ct.App.Div. 1921); affirmed, 136 N.E. 317 (N.Y. 1923)
Holding=Though the Fourteenth Amendment prohibits states from infringing free speech, the defendant was properly convicted under New York's criminal anarchy law for advocating the violent overthrow of the government, through the dissemination of Communist pamphlets.
JoinMajority=Taft, Van Devanter, McReynolds, Sutherland, Butler, Stone
LawsApplied=U.S. Const. amends. I, XIV; N.Y. Penal Law §§ 160, 161
"Gitlow v. New York", ussc|268|652|1925, was a historically important case argued before the
United States Supreme Courtin which the Court ruled that the Fourteenth Amendment to the U.S. Constitution had extended the reach of certain provisions of the First Amendment — specifically the provisions protecting freedom of speechand freedom of the press— to the governments of the individual states. The Supreme Court previously held, in " Barron v. Baltimore", 32 U.S. 243 (1833), that the Constitution's Bill of Rights applied only to the federal government, and that, consequently, the federal courts could not stop the enforcement of state laws that restricted the rights enumerated in the Bill of Rights. "Gitlow v. New York"'s partial reversal of that precedentbegan a trend towards nearly complete reversal; the Supreme Court now holds that almost every provision of the Bill of Rights applies to both the federal government and the states. Ironically, the Court upheld the state law challenged in "Gitlow v. New York," which made it a crime to advocate the duty, need, or appropriateness of overthrowing government by force or violence. The Court's ruling on the effects of the Fourteenth Amendment was incidental to the decision, but nevertheless established an extremely significant precedent.
As justification for its decision, the Supreme Court relied on the "
due processclause" of the Fourteenth Amendment. This provision — contained in Section One of the amendment — prohibits any state from depriving "any person of life, liberty, or property, without due process of law." Specifically, in its decision the Court stated that "For present purposes we may and do assume that" the rights of freedom of speech and freedom of the press were "among the fundamental personal rights and 'liberties' protected by the due process clause of the Fourteenth Amendment from impairment by the states" (at 666). The Court would go on to use this logic of incorporation much more purposefully in other cases, such as " De Jonge v. Oregon", 299 U.S. 353 (1937), " Wolf v. Colorado", 338 U.S. 25 (1949), and " Gideon v. Wainwright", 372 U.S. 335 (1963), to extend the reach of the Bill of Rights. Constitutional scholars refer to this process as the " incorporation doctrine," meaning that the Supreme Court "incorporates" specific rights into the due process clause of the Fourteenth Amendment.
"Gitlow v. New York" was also important for defining the scope of the First Amendment's protection of free speech following the period of the "Red Scare," in which Communists and Socialist Party members were routinely convicted for violating the
Espionage Act of 1917and Sedition Act of 1918. Gitlow, a Socialist, had been convicted of criminal anarchy after publishing a "Left Wing Manifesto." The Court upheld his conviction on the basis that the government may suppress or punish speech when it directly advocates the unlawful overthrowing of the government.
The opinions in this case are notable for their attempt to define more clearly the "
clear and present danger" test that came out of " Schenck v. United States", 249 U.S. 47 (1919). The majority opinion written by Justice Edward Terry Sanford, embracing "the bad tendency test" that came out from " Abrams v. United States", 250 U.S. 616 (1919), stated that a "State may punish utterances endangering the foundations of government and threatening its overthrow by unlawful means" because such speech clearly "present [s] a sufficient danger to the public peace and to the security of the State." According to Sanford, "a single revolutionary spark may kindle a fire that, smoldering for a time, may burst into a sweeping and destructive conflagration."
In the dissenting opinion, Justice Holmes, the original author of the clear and present danger test, disagreed, arguing that Gitlow presented no present danger because only a small minority of people shared the views presented in the manifesto and because it directed an uprising at some "indefinite time in the future."
List of United States Supreme Court cases, volume 268
Spaeth, Harold J.; and Smith, Edward Conrad. (1991). "HarperCollins college outline series: Constitution of the United States." (13th ed.). New York: HarperCollins. ISBN 0-06-467105-4
* [http://laws.findlaw.com/us/268/652.html Full text of the decision courtesy of Findlaw.com]
* [http://www.firstamendmentcenter.org/faclibrary/case.aspx?case=Gitlow_v_NY First Amendment Library entry for Gitlow v. New York]
* [http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/clear&pdanger.htm Exploring Constitutional Conflicts: Clear and Present Danger]
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