Gitlow v. New York (1925)
Monday, December 7, 2009 at 8:35PM Read the opinion here.
Issue. Does a New York law that makes it a crime to advocate the violent overthrow of the government violate the 1st Amendment right of Free Speech?
Background. Benjamin Gitlow was indicted under New York's criminal anarchy statute. The law made it a crime to advocate the violent overthrown of the government. Gitlow preached and distributed his anarchist ideology from a publication called "The Left Wing Manifesto."
Gitlow claimed he was being prosecuted for mere words and that there was no evidence of any concrete result flowing from the publication of the Manifesto or of circumstances showing the likelihood of such a result. Thus, the prosecution violated Gitlow's constitutional rights.
The Surpeme Court did not agree and confirmed the conviction.
Court's Analysis. The Court rejected its previous "Clear and Present Danger" standard for one that was even more deferential to the State. Why should the State wait for words to become action? "A single revolutionary speak may kindle a fire that, smoldering for a time, may bust into a sweeping and destructive conflagration."
A constitional republic has the power to preserve itself and cannot allow its constitutional liberties be used against it to destroy the Constitution. The Court finds:
[A] State may punish utterances endangering the foundations of organized government and threatening its overthrow by unlawful means. [In] short this freedom does not deprive a State of the primary and essential right of [self preservation].
The Court gave the State great deference in determining what is a threat to its existence and how best to address that threat. Thus, the law is constitutional.
In dissent, Justice Holmes would have stuck to the "Clear and Present Danger" standard. Since these was no such danger in this case, Gitlow's conviction was unconstitutional. Interestingly, Holmes was not sold on self preservation:
If in the long run the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community the only meaning of free speech is that they should be given their chance and have their way.
Still, if the Manifesto laid out a specific plan for violent revolution, Holmes may have ruled differently. But, a general call to arms at some time in the indefinite future cannot be prosecuted consistently with the Constitution.