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 par-
liamentary 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 Mani-
festo.” The manifesto was also published in The
Revolutionary Age, the official paper of the Left
Wing. The opinions expressed in these publica-
tions formed the bases for the defendant’s con-
victions under Sections 160 and 161 of the penal
law of New York, which were the criminal anar-
chy 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 teach-
ing 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, neces-
sity, 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, contain-
ing the writings set forth in the first count advo-
cating 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 con-
tended that the New York state laws violated the
right of free speech protected by the FIRST
AMENDMENT. In sustaining the defendant’s con-
viction, the U.S. Supreme Court assumed that
the DUE PROCESS CLAUSE of the FOURTEENTH
AMENDMENT prevented the states from impair-
ing the freedoms guaranteed by the First
Amendment. The Court also noted that the
statutes did not penalize the “utterance or pub-
lication of abstract doctrine or academic theory
having no propensity to incite concrete action.”
It found that Gitlow’s publications used lan-
guage advocating, advising, or teaching the over-
throw of organized government by unlawful
means, and that such language implied an urg-
ing 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 vio-
lence. Such actions are inherently unlawful in a
democratic system of government. It ruled that
freedom of expression does not grant an individ-
ual the absolute right to speak or publish, nor
does it offer unqualified IMMUNITY from pun-
ishment for every possible utterance or publica-
tion. 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 cor-
rupt 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 can-
not be ARBITRARY or unreasonable.
In subsequent cases (for example, Branden-
burg 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
