268 U.S. 652 (1925)
In August 1919, Benjamin Gitlow, a member of the Left Wing Section of the Socialist Party, was indicted in the Supreme Court of New York, along with three others, for the crime of criminal anarchy under New York Penal Laws sections 160 and 161.1 The indictment contained two counts: the first charged that Gitlow had advocated the overthrow of organized government by force through writings in the "Left Wing Manifesto," and the second charged that he had printed, published, and circulated "The Revolutionary Age" containing those writings.2
The Left Wing Section had been organized nationally at a conference in New York City in June 1919 attended by ninety delegates from twenty states.3 Gitlow served on the National Council and as business manager of The Revolutionary Age, the official organ of the Left Wing.4 He arranged for the printing of sixteen thousand copies of the first issue, which included the Manifesto, paid for them, and directed their wrapping, mailing, and sale from the organization's New York office.5
The Manifesto reviewed the rise of socialism, condemned moderate socialism, and advocated revolutionary socialism through mass industrial revolts, political mass strikes, and revolutionary mass action to destroy the parliamentary state and establish a dictatorship of the proletariat.6 It cited recent strikes in Seattle and Winnipeg as examples and called the proletariat to the final struggle.7
At trial, undisputed evidence established Gitlow's membership, his role in the publication, his subscription to the Manifesto, and his advocacy of Left Wing principles to Socialist Party branches.8 No evidence was presented of any concrete effect resulting from the Manifesto's publication and circulation, and no witnesses testified on Gitlow's behalf.9 The trial court denied motions to dismiss and convicted Gitlow after charging the jury on the intent and meaning of the Manifesto.10
The judgment was affirmed by the Appellate Division and the Court of Appeals.11 The case reached the Supreme Court of the United States on a writ of error.12
Whether the New York criminal anarchy statute, as construed and applied to the defendant's publication and circulation of the Left Wing Manifesto, deprived him of liberty in violation of the Due Process Clause of the Fourteenth Amendment?13
A state may in the exercise of its police power punish utterances advocating the overthrow of organized government by force, violence or unlawful means. Such utterances involve danger to the public peace and the security of the state. The legislature's determination that a class of utterances poses sufficient danger of substantive evil must be given great weight. The statute need not require proof of clear and present danger as to each specific utterance once the legislature has determined the prohibited class.14
No. The New York statute is a constitutional exercise of the police power and its application to Gitlow did not violate due process.15
Upon the organization of the Left Wing Section of the Socialist Party at a national conference in New York City in June 1919, Benjamin Gitlow became a member of its National Council and served as business manager of its official organ, The Revolutionary Age.16 Subsequently, Gitlow arranged for the printing of sixteen thousand copies of the first issue containing the Left Wing Manifesto, paid for the copies, and directed their distribution from the organization's office in New York City.17 The Manifesto itself condemned moderate socialism and called for revolutionary mass action, including mass industrial revolts and political mass strikes, to destroy the parliamentary state and establish a dictatorship of the proletariat, citing strikes in Seattle and Winnipeg as examples verging on revolutionary action.18
At trial, the prosecution introduced undisputed evidence of Gitlow's role in the publication and circulation of the Manifesto, his subscription to its principles, and his advocacy of Left Wing ideas to other branches of the Socialist Party.19 No evidence was offered to show any concrete effect from the Manifesto's publication, and the defense presented no witnesses.20 The trial court denied Gitlow's motions to dismiss the indictment and for a directed acquittal, instead charging the jury that they must find the Manifesto advocated action for the overthrow of government by unlawful means.21
After the jury convicted Gitlow, the Appellate Division and the Court of Appeals affirmed the judgment, holding that the Manifesto advocated the overthrow of government by unlawful means and that the statute was constitutional.22 The case then came to the Supreme Court of the United States on a writ of error from the Supreme Court of New York.23 The Manifesto advocated and urged in fervent language mass action to overthrow organized parliamentary government through inherently unlawful means, and the jury was warranted in finding that it went beyond abstract doctrine to direct incitement.24
The statute prohibits advocacy of action rather than mere abstract doctrine or prediction, and the trial court's instructions properly required the jury to determine whether the Manifesto taught, advised, or advocated the duty or necessity of overthrowing government by unlawful means.25 Because the legislature had already determined that this class of utterances creates a sufficient danger of substantive evil, no further inquiry into the likelihood of immediate results from this particular publication was required.26
The statute is constitutional on its face and as applied; its enforcement against Gitlow did not deprive him of liberty without due process of law.27
Related opinions on this issue
Joined by Justice Brandeis
Justice Holmes dissented on the ground that the clear and present danger test from Schenck v. United States must apply to state statutes under the Fourteenth Amendment.28 He concluded that the Manifesto created no present danger of an attempt to overthrow the government by force. The minority holding the defendant's views was small, and the publication had no chance of starting a present conflagration. Holmes emphasized that every idea is an incitement. The only difference between opinion and incitement is the speaker's enthusiasm for the result. This document was too remote from possible consequences to support conviction.
If the publication had been laid as an attempt to induce an uprising at once, it would have presented a different question. The indictment alleged publication and nothing more.
Whether the liberty protected by the Fourteenth Amendment includes the liberty of speech and of the press?29
Freedom of speech and of the press are protected by the First Amendment from abridgment by Congress. They are among the fundamental personal rights and liberties protected by the due process clause of the Fourteenth Amendment from impairment by the States. The Court assumes this protection for purposes of deciding the case.
Yes. The Court assumes that the liberty protected by the Fourteenth Amendment includes freedom of speech and of the press, overruling any contrary implication in prior precedent. This assumption permits the Court to consider whether the New York statute infringed Gitlow's liberty through its application to his role in publishing and circulating the Manifesto. The Court explicitly declines to treat an earlier statement in Prudential Ins. Co. v. Cheek as determinative on the incorporation question.30
The Court assumes incorporation of First Amendment speech and press freedoms into the Fourteenth Amendment for purposes of deciding the case.31