Gitlow v. New York

Background

Benjamin Gitlow, a leader in a radical Left Wing faction of the Socialist Party, helped publish and distribute a pamphlet called the Left Wing Manifesto in the paper The Revolutionary Age. New York charged him under a state law that criminalized advocating the overthrow of government by force or unlawful means. He was tried, convicted, and the state courts affirmed his conviction. The record showed he organized, paid for, and arranged publication and mailing of many copies, though there was no evidence the pamphlet produced any actual violence or immediate disorder.

Reasoning

The main question was whether the state law violated the liberty of speech protected by the Fourteenth Amendment. The Court assumed that freedom of speech applies to the States through the Fourteenth Amendment but held that the right is not absolute. The majority read the statute as aimed at advocacy that urges action to overthrow government, not mere abstract discussion. Because the Manifesto plainly urged mass industrial and political strikes to destroy the parliamentary state, the Court found it to be direct incitement within the law and sustained the conviction. The decision gives weight to the State’s judgment that such advocacy risks substantive evil and may be punished to preserve public safety.

Real world impact

The ruling permits states to prosecute people and publications that actively urge violent or unlawful overthrow of government, even absent proof of an immediate uprising. Political groups, their newspapers, and organizers who call for mass revolutionary action risk criminal penalties under similar state laws. The decision makes clear states may act preemptively to suppress advocacy judged to threaten public order.

Dissents or concurrances

Justice Holmes dissented, arguing the Fourteenth Amendment protects free speech and that the proper test is whether words present a "clear and present danger." He would have reversed, finding no immediate danger from the pamphlet.