5. Gitlow v.

People of New York, 268 US 652 (1924)_ Subsequent punishment

Brief Fact Summary.
Defendant Benjamin Gitlow, a member of the left wing, wrote and published two papers that
promoted the violent overthrow of the government. He was indicted on two counts of anarchy and
advocacy of criminal anarchy. Defendant contends that the New York statutes, under which he was
convicted, unconstitutionally restricted his rights of free speech and press as protected by the First
Amendment, and applied to the states through the Fourteenth Amendment.

Synopsis of Rule of Law.

While the freedom of speech and press are protected liberties under the Fourteenth Amendment, a
state may restrict these freedoms if it feels that it is in the best interest of public safety and welfare.
Nor does the state need to wait until the threat presents a clear and present danger to public safety or
welfare before it takes action. But, it must do so through a means that is neither arbitrary nor
unreasonable.

Facts.
Defendant was indicted for the statutory crime of criminal anarchy and advocacy of criminal anarchy.
This indictment contained two counts. The first charged the Defendant had advocated, advised, and
taught the duty, necessity and propriety of overthrowing and overturning organized government by
force, violence and unlawful means, by certain writings therein set forth entitled, “The Left Wing
Manifesto.” The Second count charged Defendant with printing, publishing, and knowingly circulating
a paper called “The Revolutionary Age.” This second paper also called for a violent overthrow of the
government. Defendant admitted that he signed a card subscribing to the Manifesto and program of
the left wing, that he went to different parts of the state to speak to branches of the Socialist Party
about the principles of the left wing and advocate their adoption. He also stated that he know of the
Manifesto’s publication and is responsible for its circulation.

Issue.
Whether New York Penal Law Section:Section:160-161 is an unreasonable exercise of the State of
New York’s police power by infringing on freedom of speech or press?

Held.
No. Conviction affirmed. Although the Court holds that freedom of speech and freedom of the press
are protected by the First Amendment from abridgement 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, the Court further holds that this statute is not an arbitrary or unreasonable
exercise of the police power of the state unwarrantably infringing the freedom of speech or press; and
therefore sustains its constitutionality. For the statute does not penalize the utterance or publication
of abstract doctrine or academic discussion having no quality of incitement to any concrete action.
The Court feels that a single revolutionary spark may kindle a fire, that smoldering for a time, may
burst into a sweeping and destructive conflagration. Therefore, a state does not need to wait until the
threat presents a clear and present danger to public safety and welfare, but can act whenever there is
a presumed threat. It cannot be said that the state is acting arbitrarily or unreasonable when in the
exercise of its judgment that is uses the measures necessary to protect the public peace and safety.
In the exercise of its judgment the state can suppress the threatened danger in its infancy, and this
statute not being an arbitrary means of doing so is constitutional.
Dissent.
Feels the judgment should be reversed, as there was no present danger of an attempt to overthrow
the government by force on the part of the admittedly small minority who shared the Defendant’s
view. 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. The dissent believes this to be the case unless this document was to
induce an uprising against the government immediately and not at some indefinite future time then it
would have presented a different question to the Court.

Discussion.
This case explains how the federal government or a state may limit certain liberties guaranteed in the
Constitution. The states can place limits on individual rights if certain exercises of those rights
threaten public safety and welfare. This case must also be considered in the light of the era in which
it was decided. It was decided in an era where many believed that an internal communist overthrow
of the government was a real threat. It is possible that if this case was decided in a different era that
it could have been decided differently. But, nonetheless, this case carves out a very important way in
which states can limit individual liberties. This case also holds that the clear and present danger test
is an irrelevant concept when a law criminally punished certain categories of speech.