Gitlow v. New York

Citation. 268 U.S. 652, 45 S.Ct. 625, 69 L.Ed. 1138 (1925).

Brief Fact Summary.

Defendant challenged conviction under a state criminal anarchy statute, arguing it violated the Due Process Clause of the 14th Amendment.

Synopsis of Rule of Law.

So long as a state is not acting arbitrarily or unreasonably, it may enact measures necessary to protect the public peace and safety.

Facts.

Defendant was indicted on two counts: advocating, advising, and teaching from “The Left Wing Manifesto” and printing, publishing, and knowingly circulating an additional paper called “The Revolutionary Age.” Defendant argued that the statute under which he was charged contravened the Due Process Clause of the 14th Amendment because it did not regard the circumstances or likelihood of unlawful sequences, i.e. the actual overthrow of the government.

Issue.

Whether the state criminal anarchy statute is constitutional under the Due Process Clause of the 14th Amendment.

Held.

Yes. The state criminal anarchy statute is constitutional under the Due Process Clause of the 14th Amendment.

Dissent.

Justice Holmes

The principles of free speech must be taken to be included in the 14th Amendment. The manifesto alone is not enough to be considered incitement.

The only difference between the expression of an opinion and an incitement in the narrower sense is the speaker’s enthusiasm for the result. Eloquence may set fire to reason.

Discussion.

The statute does not penalize the utterance or publication of abstract doctrine or restrain advocacy generally. Rather, it protects against deliberate actions to overthrow organized government.

A single revolutionary spark may kindle a fire. The legislature has made a determination that some utterances involve danger of substantive evil that they may punish. It is sufficient that the statute itself be constitutional and that the use of the language comes within its prohibition. Judgement affirmed.