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Gitlow v. New York

Citation. 22 Ill.268 U.S. 652, 45 S. Ct. 625, 69 L. Ed. 1138 (1925)
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Brief Fact Summary.

Defendant Benjamin Gitlow, a member of the left wing, wrote and published two papers that promoted the violent overthrow of the government. He was indicted on two counts of anarchy and advocacy of criminal anarchy. Defendant contends that the New York statutes, under which he was convicted, unconstitutionally restricted his rights of free speech and press as protected by the First Amendment, and applied to the states through the Fourteenth Amendment.

Synopsis of Rule of Law.

While the freedom of speech and press are protected liberties under the Fourteenth Amendment, a state may restrict these freedoms if it feels that it is in the best interest of public safety and welfare. Nor does the state need to wait until the threat presents a clear and present danger to public safety or welfare before it takes action. But, it must do so through a means that is neither arbitrary nor unreasonable.


Defendant was indicted for the statutory crime of criminal anarchy and advocacy of criminal anarchy. This indictment contained two counts. The first charged the Defendant had advocated, advised, and taught the duty, necessity and propriety of overthrowing and overturning organized government by force, violence and unlawful means, by certain writings therein set forth entitled, “The Left Wing Manifesto.” The Second count charged Defendant with printing, publishing, and knowingly circulating a paper called “The Revolutionary Age.” This second paper also called for a violent overthrow of the government. Defendant admitted that he signed a card subscribing to the Manifesto and program of the left wing, that he went to different parts of the state to speak to branches of the Socialist Party about the principles of the left wing and advocate their adoption. He also stated that he know of the Manifesto’s publication and is responsible for its circulation.


Whether New York Penal Law Section:Section:160-161 is an unreasonable exercise of the State of New York’s police power by infringing on freedom of speech or press?


No. Conviction affirmed. Although the Court holds that freedom of speech and freedom of the press are protected by the First Amendment from abridgement 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, the Court further holds that this statute is not an arbitrary or unreasonable exercise of the police power of the state unwarrantably infringing the freedom of speech or press; and therefore sustains its constitutionality. For the statute does not penalize the utterance or publication of abstract doctrine or academic discussion having no quality of incitement to any concrete action. The Court feels that a single revolutionary spark may kindle a fire, that smoldering for a time, may burst into a sweeping and destructive conflagration. Therefore, a state does not need to wait until the threat presents a clear and present danger to public safety and welfare, but can act whenever there is a presumed threat. It cannot be said that the state is acting arbitrarily or unreasonable when in the exercise of its judgment that is uses the measures necessary to protect the public peace and safety. In the exercise of its judgment the state can suppress the threatened danger in its infancy, and this statute not being an arbitrary means of doing so is constitutional.


Feels the judgment should be reversed, as 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 view. 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. The dissent believes this to be the case unless this document was to induce an uprising against the government immediately and not at some indefinite future time then it would have presented a different question to the Court.


This case explains how the federal government or a state may limit certain liberties guaranteed in the Constitution. The states can place limits on individual rights if certain exercises of those rights threaten public safety and welfare. This case must also be considered in the light of the era in which it was decided. It was decided in an era where many believed that an internal communist overthrow of the government was a real threat. It is possible that if this case was decided in a different era that it could have been decided differently. But, nonetheless, this case carves out a very important way in which states can limit individual liberties. This case also holds that the clear and present danger test is an irrelevant concept when a law criminally punished certain categories of speech.

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