15. Gitlow v. New York (1925)
William H. Taft (July 11, 1921 through February 3, 1930)
Issue/Topic
Freedom of Speech and Clear and Present Danger
II. Historical Background/ Facts:
In 1925, Benjamin Gitlow, a member of the Socialist Party had printed 16,000 copies of a “The
Left-Wing Manifesto” in which he urged workers to rise up to overthrow the U.S. government.
This “manifesto” was published in the Revolutionary Age, an official organ of the Left Wing. He
arranged for the printing of the paper and took to the printer the manuscript of the first issue
which contained the Left Wing Manifesto, and also a Communist Program and a Program of the
Left Wing that had been adopted by the conference. He was arrested and convicted for violating
the New York Criminal Anarchy law of 1902, which made it a crime to attempt to encourage the
violent overthrow of government.
III. Issue
The Court ruled on whether the New York law punishing the advocacy of overthrowing the
government was an unconstitutional violation of the free speech clause of the First Amendment.
IV. Argument
At his trial, Gitlow argued that since there was no resulting action flowing from the manifesto’s
publication, the statute penalized utterances without provocation of concrete action.
The New York courts had decided that anyone who advocated the doctrine of violent revolution
violated the law.
V. Decision
The Court ruled in favor of Gitlow.
Supreme Court Votes: 7 votes for Gitlow, 2 votes against
VI. Reasoning
In majority ruling, Mr. Justice Sanford ruled that the states could not abridge free speech
protections. A state may forbid both speech and publication if they have a tendency to result in
action dangerous to public security, even though such utterances create no clear and present
danger.
In his dissenting opinion, Justice Homes claimed that the clear and present danger test (the
speech creates a clear and present danger of a substantive evil that a state has the right to
prevent) in Schneck should be applied to this case. Every idea is an incitement because if it is
believed it is acted on unless it is outweighed by another belief. The speech in question posed no
imminent danger, but should have given a chance to be accepted.
VII. Opinion
I agree with the Court’s decision because an individual does have the right to freedom of speech
unless it causes clear and present danger, which wasn’t present in this particular case.
VIII. Historical Significance:
After Gitlow v. New York, incorporation doctrine was slowly developing. It took the Court six
more years after Gitlow v. New York, to incorporate freedom of press clause into the First
Amendment.
Related Cases:
Schenck v. United States (1919)
Debs v. United States (1919)
Near v. Minnesota (1931)
IX. Cite Sources:
"Gitlow v. New York | The Oyez Project at IIT Chicago-Kent College of Law." The Oyez
Project at IIT Chicago-Kent College of Law | U.S. Supreme Court Oral Argument Recordings,
Case Abstracts and More. Web. 02 May 2011. <http://www.oyez.org/cases/19011939/1922/1922_19>.
"Gitlow v. New York." Case Briefs - Free and Best. Web. 30 Apr 2011.
<http://4lawnotes.com/showthread.php/2056-Gitlow-v.-New-York>.
"Gitlow v People of New York." UMKC School of Law. Web. 02 May 2011.
<http://law2.umkc.edu/faculty/projects/ftrials/conlaw/gitlow.html>.