Gitlow v. People of the State of New York
Decided on June 8, 1925; 268 US 652



Freedom of speech and of the press are "fundamental personal rights and 'liberties' protected by the due process clause of the Fourteenth Amendment from impairment by the state."

I. ISSUES II. CASE SUMMARY III. AMICI CURIAE IV. DECISION V. WIN OR LOSS?
I. ISSUES:

A. Issues Discussed: Freedom of expression

B. Legal Question Presented:

Does a statute, which regulates speech by prohibiting advocacy of criminal anarchy, deprive the defendant of his liberty of expression in violation of the due process clause of the Fourteenth Amendment?

II. CASE SUMMARY:

A. Background:

"The defendant is a member of the Left Wing Section of the Socialist Party...[which] was organized nationally at a conference in New York City in June , 1919...The conference elected a National Council, of which the defendant was member, and left to it the adoption of a 'Manifesto.' This was published in The Revolutionary Age, the official organ of the Left Wing... Sixteen thousand copies were printed... and paid for by the defendant, as business manager of the paper... [D]efendant signed a card subscribing to the Manifesto and Program of the Left Wing... and went to different parts of the State to speak to branches of the Socialist Party about the principles of the Left Wing and advocated their adoption.

[The Manifesto] advocated, in plain and unequivocal language, the necessity of accomplishing the 'Communist Revolution' by a militant and 'revolutionary Socialism,' based on 'the class struggle' and mobilizing the 'power of the proletariat in action,' through mass industrial revolts developing into mass political strikes and 'revolutionary mass action,' for the purpose of conquering and destroying the parliamentary state and establishing in its place, through a 'revolutionary dictatorship of the proletariat,' the system of Communist Socialism.

[Defendant was] 'convicted and sentenced to imprisonment' by the trial court. The Court of Appeals held that the Manifesto 'advocated the overthrow of [the] government by violence, or by unlawful means... and both the Appellate Division and the Court of Appeals held the statute constitutional."

On certiorari the Supreme Court affirmed the Court of Appeals judgment.
B. Counsel of Record:
ACLU Side
(Petitioner/Appellant)
Opposing Side
(Respondent/Appellee)
Unavailable Unavailable
C. The Arguments:
ACLU Side
(Petitioner/Appellant)
Opposing Side
(Respondent/Appellee)
Unavailable Unavailable
III. AMICI CURIAE:
ACLU Side
(Petitioner/Appellant)
Opposing Side
(Respondent/Appellee)
Messrs. Walter H. Pollak and Walter Nelles, both of New York City, for plaintiff in erro. John Caldwell Myers, of New York City, and W. J. Wetherbee and Claude T. Dawes, both of Albany, NY, for the People of the State of New York.
IV. THE SUPREME COURT'S DECISION:

"The statute does not penalize the utterance or publication of abstract 'doctrine' or academic discussion having no quality of incitement to any concrete action... What it prohibits is language advocating, advising or teaching the overthrow of organized government by unlawful means. [The Manifesto] advocates and urges in fervent language mass action which shall progressively foment industrial disturbances and through political mass strikes and revolutionary mass action overthrow and destroy organized parliamentary government.

For present purposes we may and do assume that freedom of speech and of 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... It is a fundamental principle, long established, that the freedom of speech and of the press which is secured by the Constitution, does not confer an absolute right to speak or publish, without responsibility...

[The State's] police 'statutes may only be declared unconstitutional where they are arbitrary or unreasonable attempts to exercise authority vested in the State in the public interest...' [U]tterances 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, by their very nature, involve danger to the public peace and to the security of the State.

[Finding] that the statute is not in itself unconstitutional, and that it has not been applied in the present case in derogation of any constitutional right," the Supreme Court affirmed the Court of Appeals judgment."

Justice Vote: 2 Pro vs. 7 Con

  • Sanford, E. Con (Wrote majority opinion)
  • Taft, W. Con (Joined majority opinion)
  • Van Devanter, W. Con (Joined majority opinion)
  • McReynolds, J. Con (Joined majority opinion)
  • Sutherland, G. Con (Joined majority opinion)
  • Butler, P. Con (Joined majority opinion)
  • Stone, H. Con (Joined majority opinion)
  • Holmes, O. Pro (Wrote dissenting opinion)
  • Brandeis, L. Pro (Joined dissenting opinion)
V. A WIN OR LOSS FOR THE ACLU?

The ACLU, as attorney of record, urged reversal of the Court of Appeals' Judgment; the Supreme Court affirmed in a 7-2 vote, giving the ACLU an apparent loss.