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.
Issue. 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?
Held. 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.
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.View Full Point of Law