Gitlow v. New York,
268 U.S. 652 (1925)

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U.S. Supreme Court

Gitlow v. People of New York, 268 U.S. 652 (1925)

Gitlow v. People of New York


Argued April 12, 1923

Reargued November 23, 1923

Decided June 8, 1925

268 U.S. 652


1. Assumed, for the purposes of the case, that freedom of speech and of the press are among the personal rights and liberties protected by the due process clause of the Fourteenth Amendment from impairment by the States. P. 268 U. S. 666.

2. Freedom of speech and of the press, as secured by the Constitution, is not an absolute right to speak or publish without responsibility whatever one may choose or an immunity for every possible use of language. P. 268 U. S. 666.

3. That a State, in the exercise of its police power, may punish those who abuse this freedom by utterances inimical to the public welfare, tending to corrupt public morals, incite to crime or disturb the public peace, is not open to question. P. 268 U. S. 667.

4. For yet more imperative reasons, a State may punish utterances endangering the foundations of organized government and threatening its overthrow by unlawful means. P. 268 U. S. 667.

5. A statute punishing utterances advocating the overthrow of organized government by force, violence and unlawful means, imports a legislative determination that such utterances are so inimical to the general welfare and involve such danger of substantive evil that they may be penalized under the police power, and this determination must be given great weight, and every presumption be indulged in favor of the validity of the statute. P. 268 U. S. 668.

6. Such utterances present sufficient danger to the public peace and security of the State to bring their punishment clearly within the range of legislative discretion, even if the effect of a given utterance cannot accurately be foreseen. P. 268 U. S. 669.

7. A State cannot reasonably be required to defer taking measures against these revolutionary utterances until they lead to actual disturbances of the peace or imminent danger of the State's destruction. P. 268 U. S. 669.

8. The New York statute punishing those who advocate, advise or teach the duty; necessity or propriety of overthrowing or overturning organized government by force, violence, or any unlawful means, or who print, publish, or knowingly circulate any book,

Page 268 U. S. 653

paper, etc., advocating, advising or teaching the doctrine that organized government should be so overthrown, does not penalize the utterance or publication of abstract doctrine or academic discussion having no quality of incitement to any concrete action, but denounces the advocacy of action for accomplishing the overthrow of organized government by unlawful means, and is constitutional as applied to a printed "Manifesto" advocating and urging mass action which shall progressively foment industrial disturbances and, through political mass strikes and revolutionary mass action, overthrow and destroy organized parliamentary government; even though the advocacy was in general terms, and not addressed to particular immediate acts or to particular person. Pp. 268 U. S. 654, 268 U. S. 672.

9. The statute being constitutional, it may constitutionally be applied to every utterance not too trivial to be beneath the notice of the law -- which is of such a character and used with such intent and purpose as to bring it within the prohibition of the statute, and the question whether the specific utterance in question was likely to bring about the substantive evil aimed at by the statute is not open to consideration. Schenck v. United States, 249 U. S. 47, explained. P. 268 U. S. 670.

195 App.Div. 77; 234 N.Y. 132, 539, affirmed.

ERROR to a judgment of the Supreme Court of New York, affirmed by the Appellate Division thereof and by the Court of Appeals, sentencing the plaintiff in error for the crime of criminal anarchy, (New York Laws, 1909, c. 88), of which he had been convicted by a jury.

Page 268 U. S. 654

Primary Holding

The First Amendment does not prevent the government from punishing political speech that directly advocates its violent overthrow.


After President William McKinley was assassinated by an anarchist in Buffalo in 1901, the state of New York passed a Criminal Anarchy Law. A socialist named Benjamin Gitlow, who worked for a newspaper called The Revolutionary Age, was charged under this law for publishing an essay in the newspaper called Left Wing Manifesto in 1919. This occurred shortly after the Bolshevik Revolution in Russia, at a time when the U.S. was particularly concerned over the rise of international socialism and communism.

Gitlow was convicted under the law despite arguing that his essay was more of an objective discussion of historical trends than a current call to action. Sentenced to five to 10 years, he served two years before being granted bail as part of his motion to appeal. However, the New York appellate court affirmed his conviction.

Procedural History

New York Supreme Court, Appellate Division - 195 A.D. 773 (N.Y. Sup.Ct.App.Div. 1921)

Affirmed. The defendant's conviction was proper under the law.

New York Court of Appeals - 136 N.E. 317 (N.Y. 1923)


Issues & Holdings

Issue: Whether the rights guaranteed by the Bill of Rights in the U.S. Constitution can be applied to limit the actions of state as well as federal governments.
Holding: Yes. Although the Bill of Rights was designed to limit the power of the federal government, the incorporation principle allows it to be applied to states.



  • Edward Terry Sanford (Author)
  • William Howard Taft
  • Willis Van Devanter
  • James Clark McReynolds
  • George Sutherland
  • Pierce Butler
  • Harlan Fiske Stone

Building on multiple free speech standards from the previous decade, Sanford expanded the clear and present danger test that Justice Holmes had used in Schenck v. U.S. He found that New York could prohibit advocating violent efforts to overthrow the government under the Criminal Anarchy Law, based in part upon applying the bad tendency test used in Abrams v. U.S. This 1919 decision, which came on the heels of Schenck, allowed the government to punish speech that threatens its basic existence because of the national security implications. Despite the small scale of Gitlow's actions, Sanford was not persuaded that they were too insignificant to have an effect. Upon examining the language of the essay in question, he did not find that it was historically oriented but a call to action.


  • Oliver Wendell Holmes, Jr. (Author)
  • Louis Dembitz Brandeis

Defending the clear and present danger test that he used in Schenck, Holmes found that Gitlow had not violated it. He analyzed the tone of the publication and considered the surrounding context. Since the call to action was not concrete and would not resonate with a significant number of people, Holmes did not feel that there was sufficient imminence to warrant punishing speech.

Case Commentary

Some of the conduct that was criminalized during this period was uncomfortably close to the expression of political beliefs, which is normally protected. Most of these cases should be seen through the lens of an era in which an ideology was viewed as a national security risk, and the concern of the Court shows how much it was influenced by the mentality of its times.

One month after Gitlow returned to prison, he was pardoned by New York Governor Al Smith, who was uneasy about punishing what appeared to be a political crime.

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