First Amendment Friday 2 – Gitlow v People

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Happy Friday and welcome to the 2nd in the Dog’s series on the Supreme Court Cases defining the boundaries of our 1st Amendment protections under the Constitution. Each week this series will look at one or two Supreme Court decisions. We will look at the facts of the case, the Majority Opinion and the Dissent Opinion. The Dog is not a lawyer so this is strictly a layman’s point of view, but the Dog believes there is value in looking at these things even if one is not a trained professional. If you find the Dog’s analysis to be wrong or you simply disagree, correct him in the comment. This is a learning exercise and the Dog wants to learn too! If you are interested in last weeks installment you can find it here:

Abrams v US

This week’s case is Gitlow v. US.

The Facts:

Benjamin Gitlow was a member of the Socialist Party who in the early 1920’s printed a news paper with a Left Wing Manifesto. This manifesto, as many Socialist and Communist writings of the time, declared the necessity of the proletarian revolution and gave the Russian Revolution as its primary example.

The State of New York arrested and tried Mr. Gitlow on the charge of Criminal Anarchy. This was defined as:

Criminal anarchy is the doctrine that organized government should be overthrown by force or violence, or by assassination of the executive head or of any of the executive officials of government, or by any unlawful means. The advocacy of such doctrine either by word of mouth or writing is a felony.  

And Advocacy of Criminal Anarchy is defined as:

1. By word of mouth or writing advocates, advises or teaches the duty, necessity or propriety of overthrowing or overturning organized government by force or violence, or by assassination of the executive head or of any of the executive officials of government, or by any unlawful means; or,

2. Prints, publishes, edits, issues or knowingly circulates, sells, distributes or publicly displays any book, paper, document, or written or printed matter in any form, containing or advocating, advising or teaching the doctrine that organized government should be overthrown by force, violence or any unlawful means

Is guilty of a felony and punishable

Mr. Gitlow was charged both with the writing of the Manifesto as well as the printing and distribution of the newspaper in which it appeared. Below are some excerpts from the Manifesto:

The Russian Revolution was the first act of the proletariat against the war and Imperialism. . . . [The] proletariat, urging on the poorer peasantry, conquered power. It accomplished a proletarian revolution by means of the Bolshevik policy of “all power to the Soviets,” — organizing the new transitional state of proletarian dictatorship. . . . Moderate Socialism affirms that the bourgeois, democratic parliamentary state is the necessary basis for the introduction of Socialism. . . . Revolutionary Socialism, on the contrary, insists that the democratic parliamentary state can never be the basis for the introduction of Socialism; that it is necessary to destroy the parliamentary state, and construct a new state of the organized producers, which will deprive the bourgeoisie of political power, and function as a revolutionary dictatorship of the proletariat. . . .


Strikes are developing which verge on revolutionary action, and in which the suggestion of proletarian dictatorship is apparent, the striker-workers trying to usurp functions of municipal government, as in Seattle and Winnipeg. The mass struggle of the proletariat is coming into being. . . . These strikes will constitute the determining feature of proletarian action in the days to come. Revolutionary Socialism must use these mass industrial revolts to broaden the strike, to make it general and militant; use the strike for political objectives, and, finally, develop the mass political strike against Capitalism and the state. Revolutionary Socialism must base itself on the mass struggles of the proletariat, engage directly in these struggles while emphasizing the revolutionary purposes of Socialism and the proletarian movement. The mass strikes of the American proletariat provide the material basis out of which to develop the concepts and action of revolutionary Socialism. . . . Our task . . . is to articulate and organize the mass of the unorganized industrial proletariat, which constitutes the basis for a militant Socialism. The struggle for the revolutionary industrial unionism of the proletariat becomes an indispensable phase of revolutionary Socialism, on the basis of which to broaden and deepen the action of the militant proletariat, developing reserves for the ultimate conquest of power.

His defense at trial was the Manifesto did not actually violate the statute he was charged with, and that the statute itself was a violation of the 14th Amendments “Due process” clause.

The crux of the States case was that while a person might analyze history and economics and make a prophetic prediction and still be on the right side of the law, they could not teach and advocate the overthrow by arms of the lawful government.

Mr. Gitlow did not contest that the verdict which was found was in error, based on the way the jury was instructed to rule. He contented it was an error for the Judge to fail to instruct the jury that it must have a clear link between the Manifesto and any specific action or call to action. The theory being there was a 1st Amendment right to free speech about the government as long as there was not ” circumstances involving the likelihood of substantive evil” This argument was supported by the following:

The argument in support of this contention rests primarily upon the following propositions: 1st, that the “liberty” protected by the Fourteenth  Amendment includes the liberty of speech and of the press, and 2nd, that while liberty of expression “is not absolute,” it may be restrained “only in circumstances where its exercise bears a causal relation with some substantive evil, consummated, attempted or likely,” and as the statute “takes no account of circumstances,” it unduly restrains this liberty and is therefore unconstitutional.

So, basically Mr. Gitlow was arguing the Criminal Anarchy statute was unconstitutional because it made no distinction between a man whipping up a mob to storm City Hall and a scholar saying that change might be affected that way.

The Majority Decision:

Five Justices found the Criminal Anarchy law did not violate the Due Process clause of the Fourteenth Amendment. It bases on a couple of principals;

The Free Speech protections were never intended to be without boundaries. One such boundary is the incitement to change of government by unlawful (meaning non-electoral) means.

The Majority states in its opinion:

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.

Here they are saying the government has the right under the Constitution to enact any laws which deal with speech that would incite crimes, disturb the peace or tend to corrupt the public morals. It is further unquestionable, this is, in their opinion, an absolute right of the State.

They further state:

In other words, when the legislative body has determined generally, in the constitutional exercise of its discretion, that utterances of a certain kind involve such danger of substantive evil that they may be punished, the question whether any specific utterance coming within the prohibited class is likely, in and of itself, to bring about the substantive evil is not open to consideration. It is sufficient that the statute itself be constitutional and that the use of the language comes within its prohibition.

What they are saying here is the Legislature can find that a single type of utterance, even if it does not contain a specific urging to criminal action, can be considered so dangerous and likely to cause action in and of itself that it can be criminalized. This would be considered completely constitutional.

The Court allowed the Legislature to make a finding that the intent of language and not the specific language itself could be criminal.

They also found the defendants argument based on Schneck v. United States which gave the test of:

question in every case is whether 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

was met since the Legislature was allowed to find any class of statements to be such a clear and present danger of substantial evil. This is due to the Legislature having the right and responsibility to determine what is and is not a danger to people.

The fact there was neither immediate urging nor immediate response to the Manifesto and that it was not addressed to specific people did not make it academic enough to be protected from the statute, which in any case was found to be constitutional. The Majority upheld the conviction.

The Dissent

Justice Holmes, who actually wrote the opinion in Schneck which established the “clear and present danger” test which he used as the basis for his dissent.

The premise of this dissent is that while there might be an urging to overthrow the government by criminal means, there was no chance based on the Manifesto that a popular uprising would occur any time soon from the publishing of it. While there was clearly the desire to see this happen the fact was this group was a small minority within the Socialist Party, which itself was a minority. He wrote:

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. 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. But whatever may be thought of the redundant discourse before us, it had no chance of starting a present conflagration.

Because the indictment was based the fact of the publication of the Manifesto and not the actually proposed acts, Justices Holmes and Brandies did not feel it was constitutional.

Whew! This is sometimes heavy lifting but it very interesting to see how the Court put this together. The fact they were still wrangling over the application of the test created in Schneck and applied in Abrams shows that while law can evolve in a single case it take more than that to settle it.

We will stop here for the week. So, citizens, what do you think? Should Mr. Gitlow have been found guilty for proposing an action should happen, needs to happen, but not giving a specific time and urging a specific group to do it? You know the Courts opinion, what is yours?

The floor is yours.

As always the quotes from the Case were provided by the Cornell Law School Legal Information Institute, which can be found at this link.  

1 comment

  1. kind of talk we are hearing out of the Right and Gitlow?  

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