Gitlow v. New York

268 U.S. 652, 45 S. Ct. 625 (1925)



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. 


Benjamin Gitlow was indicted in the Supreme Court of New York, with three others, for the statutory crime of criminal anarchy. New York Penal Laws, §§ 160, 161. He was separately tried, convicted, and sentenced to imprisonment. Defendant appealed, alleging that N.Y. Penal Law §§ 160 and 161 violated U.S. Const. amend. XIV. On appeal, the Court affirmed the decisions of the lower courts because the statutes as construed and applied did not violate U.S. Const. amend. XIV. The statutes did not penalize the utterance or publication of abstract doctrine having no quality of incitement to concrete action, but instead prohibited language advocating the overthrow of the government by unlawful means. The Court held that freedom of speech and of the press were not absolute rights, but were subject to reasonable limitations by the states. 


Whether the statute, as construed and applied in this case by the state courts, deprived the defendant of his liberty of expression in violation of the due process clause of the Fourteenth Amendment?




The statute does not penalize the utterance or publication of abstract "doctrine" or academic discussion having no quality of incitement to any concrete action. It is not aimed against mere historical or philosophical essays. It does not restrain the advocacy of changes in the form of government by constitutional and lawful means. What it prohibits is language advocating, advising or teaching  [*665]  the overthrow of organized government by unlawful means. These words imply urging to action. Advocacy is defined in the Century Dictionary as: "1. The act of pleading for, supporting, or recommending; active espousal." It is not the abstract  "doctrine" of overthrowing organized government by unlawful means which is denounced by the statute, but the advocacy of action for the accomplishment of that purpose. It was so construed and applied by the trial judge, who specifically charged the jury that: "A mere grouping of historical events and a prophetic deduction from them would neither constitute advocacy, advice or teaching of a doctrine for the overthrow of government by force, violence or unlawful means. [And] if it were a mere essay on the subject, as suggested by counsel, based upon deductions from alleged historical events, with no teaching, advice or advocacy of action, it would not constitute a violation of the statute. . . ."

Thus, the Court affirmed defendant's conviction because New York's criminal anarchy statute did not violate the Due Process Clause. The statute was a proper exercise of the State's police power.

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