Gitlow v. New York, 268 U.S. 652; 45 S. Ct. 625; 69 L. Ed. 1138 (1925)

Gitlow v. New York, 268 U.S. 652; 45 S. Ct. 625; 69 L. Ed. 1138 (1925)

Facts—Benjamin Gitlow, a socialist, was convicted in New York courts for violating the state’s criminal anarchy laws by publishing and circulating pamphlets and leaflets detrimental to the government. These publications advocated overthrowing organized government by violent and other unlawful means.

Questions—(a) Does the freedom of speech guaranteed by the First Amendment of the U.S. Constitution apply to the states? (b) Does the New York State Criminal Anarchy statute contravene the due process clause of the Fourteenth Amendment?

Decisions—(a) Yes; (b) No.

ReasonsJ. Sanford (7–2). The freedom of speech in the First Amendment should also protect against state abridgements of freedom of speech: “For present purposes we may and do assume that freedom of speech and the press—which are protected by the First Amendment from abridgment 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.”

There is, however, no absolute right to speak or publish, without responsibility, whatever one may choose. A state in the exercise of its police power may punish those who abuse this freedom by utterances inimical to the public welfare. Utterances such as the statute prohibited, by their very nature, involve danger to the public peace and to the security of the state. The statute was not arbitrary or unreasonable.

J. Holmes argued that “every idea is an incitement” and that the speech involved in this case did not pose a “clear and present danger” to the state and should not therefore be prohibited.

Note—In Gitlow the Supreme Court began applying individual provisions of the Bill of Rights to the states as well as to the national government. Over the course of time, almost all of these provisions have been so applied through a process known as “selective incorporation.” Under this doctrine, the due process clause of the Fourteenth Amendment has been used to apply those provisions in the Bill of Rights regarded to be fundamental.

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