GITLOW v. NEW YORK
Term:
- 1901-1939
Facts of the Case
Gitlow, a socialist, was arrested for distributing copies of a "left-wing manifesto" that called for the establishment of socialism through strikes and class action of any form. Gitlow was convicted under a state criminal anarchy law, which punished advocating the overthrow of the government by force. At his trial, Gitlow argued that since there was no resulting action flowing from the manifesto's publication, the statute penalized utterences without propensity to incitement of concrete action. The New York courts had decided that anyone who advocated the doctrine of violent revolution violated the law.
Question
Is the New York law punishing advocacy to overthrow the government by force an unconstitutional violation of the free speech clause of the First Amendment?
Conclusion
Threshold issue: Does the First Amendment apply to the states? Yes, by virtue of the liberty protected by due process that no state shall deny (14th Amendment). On the merits, a state may forbid both speech and publication if they have a tendency to result in action dangerous to public security, even though such utterances create no clear and present danger. The rationale of the majority has sometimes been called the "dangerous tendency" test. The legislature may decide that an entire class of speech is so dangerous that it should be prohibited. Those legislative decisions will be upheld if not unreasonable, and the defendant will be punished even if her speech created no danger at all.
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GITLOW v. NEW YORK. The Oyez Project at IIT Chicago-Kent College of Law. 18 June 2013. <http://www.oyez.org/cases/1901-1939/1922/1922_19>.
GITLOW v. NEW YORK, The Oyez Project at IIT Chicago-Kent College of Law, http://www.oyez.org/cases/1901-1939/1922/1922_19 (last visited June 18, 2013).
"GITLOW v. NEW YORK," The Oyez Project at IIT Chicago-Kent College of Law, accessed June 18, 2013, http://www.oyez.org/cases/1901-1939/1922/1922_19.