Gitlow v. New York

Brief Fact Summary.

Defendants, convicted for publishing a radical manifesto that urged revolutionary Socialism to use mass industrial revolts to broaden the strike, challenged the New York law that prohibited such an action.

Synopsis of Rule of Law.

Where the words 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, those words are not protected by the First Amendment.

Facts.

New York law made it a felony to advocate “by word of mouth or writing” the doctrine of criminal anarchy, “that organized government should be overthrown by force or violence or by any unlawful means.” Defendants were convicted for publishing a radical manifesto that urged revolutionary Socialism to use mass industrial revolts to broaden the strike, make it general and militant, and develop it into mass political strikes and revolutionary mass for the annihilation of the parliamentary state.

Issue.

Does the New York law that make it a felony to advocate “by word of mouth or writing” the doctrine of criminal anarchy, “that organized government should be overthrown by force or violence or by any unlawful means violate the Constitution?

Held.

No, because by enacting the present statute, the State of New York has determined, through its legislative body, that utterances advocating the overthrow of organized government by force, violence and unlawful means, are so inimical to the general welfare and involve such danger of substantive evil that they may be penalized in the exercise of its police power. The determination must be given a great deference.

Dissent.

Justice Holmes

There was no present danger of an attempt to overthrow the government by force on the part of the small minority who shared the defendant’s views. Every idea is an incitement. It offers itself for belief and if believed it is acted on unless some other belief outweighs it or some failure of energy stifles the movement at its birth. Whatever may be thought of the redundant discourse here, it had no chance of starting a present conflagration. 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 the free speech is that they should be given their chance and have their way.

Discussion.

That utterances inciting to the overthrow of organized government by unlawful means, present a sufficient danger of substantive evil to bring their punishment within the range of legislative discretion, is clear. Such utterances may involve danger to the public peace and to the security of the State. They threaten breaches of the peace and ultimate revolution. The immediate danger is nonetheless real and substantial because the effect of a given utterance cannot be accurately be foreseen. The Court’s holding in Schenck, that provided that where the words 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, those words are not protected by the First Amendment, has no application in this case where the legislative body has previously determined the danger of substantive evil arising from utterances of a specific character.