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Gitlow V.

New York (1925)


Tanner Sands
Facts: Benjamin Gitlow was arrested in New York on charges of criminal anarchy for printing
and distributing the first issue of The Revolutionary Age which contained the Left Wing
Manifesto. He appealed on the basis that New Yorks statute contradicts the due process clause
of the Fourteenth Amendment.
Holding: Conviction upheld
Majority Opinion (Justice Sanford):
1. There is no evidence that the publication of the manifesto had a negative effect
2. Because of the due process clause No state shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the United States; nor shall any state
deprive any person of life, liberty, or property, without due process of law; nor deny to
any person within its jurisdiction the equal protection of the laws. The first amendment
applies to states, however this right is not absolute
3. The New York statute does not penalize the utterance or publication of abstract
doctrine or any academic discussion that does not incite action
4. It is not aimed against historical or philosophical essays and it doesnt prohibit
advocacy of changes in the form of government by lawful and constitutional means
5. It only prohibits advocacy of an unlawful overthrow of organized government
6. The state is in its rights to ensure public safety and welfare and their laws are only
unconstitutional if they are arbitrary or unreasonable
7. Any utterance of overthrowing the government is sufficient enough to fit this standard,
A single revolutionary spark may kindle a fire that, smoldering for a time, may burst
into a sweeping and destructive conflagration. It cannot be said that the State is acting
arbitrarily or unreasonably when in the excise of its judgment as to the measures
necessary to protect the public peace and safety, it seeks to extinguish the spark without
waiting until it has enkindled the flame or blazed into the conflagration.
8. Utterances can be restricted if their natural tendency and probable effect is to cause
substantive evil. However, in this case that test cannot be applied because the New York
legislative body has already determined the substantive evil of this speech
9. This ruling is reminiscent of Justice Hands reasoning that speech should be restricted
based on content and not clear and present danger
Dissent: Justice Holmes
1. Free speech must be included in the Fourteenth Amendment as part of Liberty
2. There is no clear and present danger to overthrow the government because there is a
small minority that shares his view
3. Any idea can be considered an incitement, because any opinion can be acted upon
4. The difference between incitement and opinion is the speakers enthusiasm
5. If the paper argued to overthrow the government immediately and not some ambiguous
time in the future it would be different

Comments:
1. Justice Sanford has a very narrow definition of free speech
2. Justice Holmes disregards the New York state law by sticking to his clear and present
danger standard
3. When Stone argues the First Amendment [places] out of bounds any law that attempts to
freeze public debate at a particular moment in time it is applicable to Gitlow. The
Manifesto is intolerant to the moderate socialist movement and argues for
revolutionary mass acting. This extremism is not open to debate
4. The marketplace protects the flow of ideas so long as they are lawful. If it protects violent
speech, that speech can freeze public debate and hinder the pursuit of truth

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