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GITLOW v. NEW YORK, 268 U.S. 652 (1925)
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"For present purposes we may and do assume that 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. "
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U.S. Supreme Court
GITLOW v. NEW YORK, 268 U.S. 652 (1925)
268 U.S. 652
GITLOW
v.
PEOPLE OF THE STATE OF NEW YORK.
No. 19.
Reargued Nov. 23, 1923.
Decided June 8, 1925.
[268 U.S. 652, 653] Messrs. Walter H. Pollak and Walter Nelles,
both of New York City, for plaintiff in error.
Messrs. John Caldwell Myers, of New York City, and W. J. Wetherbee
and Claude T. Dawes, both of Albany, N. Y., for the People of
the State of New York.
[268 U.S. 652, 654]
Mr. Justice SANFORD delivered the opinion of the Court.
Benjamin Gitlow was indicted in the Supreme Court of New York,
with three others, for the statutory crime of criminal anarchy.
New York Penal Law, 160, 161.1 He was separately tried, convicted,
and sentenced to imprisonment. The judgment was affirmed by the
Appellate Division and by the Court of Appeals. People v. Gitlow,
195 App. Div. 773, 187 N. Y. S. 783; 234 N. Y. 132, 136 N. E.
317; and 234 N. Y. 529, 138 N. E. 438. The case is here on writ
of error to the Supreme Court, to which the record was remitted.
260 U.S. 703 , 43 S. Ct. 163.
The contention here is that the statute, by its terms and as
applied in this case, is repugnant to the due process clause
of the Fourteenth Amendment. Its material provisions are:
'Sec. 160. Criminal Anarchy Defined. Criminal anarchy is the
doctrine that organized government should be overthrown by force
or violence, or by assessination of the executive head or of
any of the executive officials of government, or by any unlawful
means. The advocacy of such doctrine either by word of mouth
or writing is a felony.
'Sec. 161. Advocacy of Criminal Anarchy. Any person who:
'1. By word of mouth or writing advocates, advises or teaches
the duty, necessity or propriety of overthrowing or overturning
organized government by force or violence, or by assassination
of the executive head or of any of the executive officials of
government, or by any unlawful means; or,
'2. Prints, publishes, edits, issues or knowingly circulates,
sells, distributes or publicly displays any book, paper, document,
or written or printed matter in any [268 U.S. 652, 655] form,
containing or advocating, advising or teaching the doctrine that
organized government should be overthrown by force, violence
or any unlawful means, ...
'Is guilty of a felony and punishable' by imprisonment or fine,
or both.
At the outset of the trial the defendant's counsel objected to
the introduction of any evidence under the [268 U.S. 652, 660]
indictment on the grounds that, as a matter of law, the Manifesto
'is not in contravention of the statute,' and that 'the statute is in contravention of' the due process clause of
the Fourteenth Amendment. This objection was denied....
The precise question presented, and the only question which we
can consider under this writ of error, then is, 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 [268 U.S. 652, 665] the overthrow of organized
government by unlawful means. These words imply urging to action...
For present purposes we may and do assume that 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. We do not regard the
incidental statement in Prudential Ins. Co. v. Cheek, 259 U.S.
530, 543 , 42 S. Ct. 516, 27 A. L. R. 27, that the Fourteenth
Amendment imposes no restrictions on the States concerning freedom
of speech, as determinative of this question...
It is a fundamental principle, long established, that the freedom
of speech and of the press which is secured by the Constitution,
does not confer an absolute right to speak or publish, without
responsibility, whatever one may choose, or an unrestricted and
unbridled license that gives immunity for every possible use
of language and prevents the punishment of those who abuse this
freedom. 2 Story on the Constitution ( 5th Ed.) 1580, p. 634;
Robertson v. Baldwin, 165 U.S. 275, 281 , 17 S. Ct. 326; Patterson
v. Colorado, 205 U.S. 454, 462 , 27 S. Ct. 556, 10 Ann. Cas.
689; Fox v. Washington, 236 [268 U.S. 652, 667] U. S. 273,
276, 35 S. Ct. 383; Schenck v. United States, 249 U.S. 47, 52
, 39 S. Ct. 247; Frohwerk v. United States, 249 U.S. 204, 206
, 39 S. Ct. 249; Debs v. United States, 249 U.S. 211, 213 , 39
S. Ct. 252; Schaefer v. United States, 251 U.S. 466, 474 , 40
S. Ct. 259; Gilbert v. Minnesota, 254 U.S. 325, 332 , 41 S. Ct.
125; Warren v. United States, 183 F. 718, 721, 106 C. C. A. 156,
33 L. R. A. (N. S.) 800. Reasonably limited, it was said by Story
in the passage cited, this freedom is an inestimable privilege
in a free government; without such limitation, it might become
the scourge of the republic.
That a State in the exercise of its police power may punish those
who abuse this freedom by utterances inimical to the public welfare,
tending to corrupt public morals, incite to crime, or disturb
the public peace, is not open to question. ...
And, for yet more imperative reasons, a State may punish utterances endangering the foundations of
organized government and threatening its overthrow by unlawful
means. These imperil its own existence as a constitutional State. Freedom
of speech and press, said Story, supra, does not protect disturbances
to the public peace or the attempt to subvert the government.
It does not protect publications or teachings which tend to subvert
or imperil the government or to impede or hinder it in the performance
of its governmental duties. State v. [268 U.S. 652, 668] Holm, supra, p. 275 (166 N. W.
181). It does not protect publications prompting the overthrow
of government by force; the punishment of those who publish articles
which tend to destroy organized society being essential to the
security of freedom and the stability of the state. People v.
Most, supra, pp. 431, 432 (64 N. E. 175). And a State may penalize utterances which openly advocate the
overthrow of the representative and constitutional form of government
of the United States and the several States, by violence or other
unlawful means. People v. Lloyd, 304 Ill. 23, 34, 136 N. E. 505. See, also,
State v. Tachin, 92 N. J. Law, 269, 274, 106 A. 145, and People
v. Steelik, 187 Cal. 361, 375, 203 P. 78. In short this freedom
does not deprive a State of the primary and essential right of
self preservation; which, so long as human governments endure,
they cannot be denied. Turner v. Williams, 194 U.S. 279, 294
, 24 S. Ct. 719. In Toledo Newspaper Co. v. United States, 247
U.S. 402, 419 , 38 S. Ct. 560, 564 (62 L. Ed. 1186), it was said:
'The safeguarding and fructification of free and constitutional
institutions is the very basis and mainstay upon which the freedom
of the press rests, and that freedom, therefore, does not and
cannot be held to include the right virtually to destroy such
institutions.'
By enacting the present statute the State has determined, through
its legislative body, that utterances advocating the overthrow
of organized government by force, violence and unlawful means,
are so inimical to the general welfare and involve such danger
of substantive evil that they may be penalized in the exercise
of its police power. That determination must be given great weight. Every presumption is to be indulged in favor of the validity
of the statute. ...
The State cannot reasonably be required to measure the danger
from every such utterance in the nice balance of a jeweler's
scale. A single revolutionary spark may kindle a fire that, smouldering
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 exercise 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. It cannot reasonably be required to defer the adoption of measures
for its own peace and safety until the revolutionary utterances
lead to actual disturbances of the public peace or imminent and
immediate danger of its own destruction; but it may, in the exercise
of its judgment, suppress the threatened danger in its incipiency.
In People v. Lloyd, supra, p. 35 (136 N. E. 512), it was aptly
said:
'Manifestly, the legislature has authority to forbid the advocacy
of a doctrine designed and intended to overthrow the government
without waiting until there is a present and imminent danger
of the success of the plan advocated. If the State were compelled to wait until the apprehended danger
became certain, then its right to protect itself would come into
being simultaneously with the overthrow of the government, when
there [268 U.S. 652, 670] would be neither prosecuting officers
nor courts for the enforcement of the law.'
We cannot hold that the present statute is an arbitrary or unreasonable
exercise of the police power of the State unwarrantably infringing
the freedom of speech or press; and we must and do sustain its
constitutionality.
This being so it may be applied to every utterance-not too trivial
to be beneath the notice of the law-which is of such a character
and used with such intent and purpose as to bring it within the
prohibition of the statute. This principle is illustrated in
Fox v. Washington, supra, p. 277 ( 35 S. Ct. 383); Abrams v.
United States, 250 U.S. 616, 624 , 40 S. Ct. 17; Schaefer v.
United States, supra, pp. 479, 480 (40 S. Ct. 259); Pierce v.
United States, 252 U.S. 239, 250 , 251 S., 40 S. Ct. 205,10 and
Gilbert v. Minnesota, supra, p. 333 (41 S. Ct. 125). In other
words, when the legislative body has determined generally, in the constitutional
exercise of its discretion, that utterances of a certain kind
involve such danger of substantive evil that they may be punished,
the question whether any specific utterance coming within the
prohibited class is likely, in and of itself, to bring about
the substantive evil, is not open to consideration. It is sufficient
that the statute itself be constitutional and that the use of
the language comes within its prohibition.....
And finding, for the reasons stated, that the statute is not
in itself unconstitutional, and that it has not been applied
in the present case in derogation of any constitutional right,
the judgment of the Court of Appeals is
AFFIRMED.
Mr. Justice HOLMES (dissenting).
Mr. Justice BRANDEIS and I are of opinion that this judgment
should be reversed. The general principle of free speech, it
seems to me, must be taken to be included in the Fourteenth Amendment,
in view of the scope that has been given to the word 'liberty'
as there used, although perhaps it may be accepted with a somewhat
larger latitude of interpretation than is allowed to Congress
by the sweeping language that governs or ought to govern the
laws of the United States. If I am right then I think that the
criterion sanctioned by the full Court in Schenck v. United States, 249 U.S. 47, 52 , 39 S. Ct. 247, 249 (63 L. Ed. 470), applies:
'The question in every case is whether the words used are used
in such circumstances and are of such a nature as to create a
clear and present danger that they will bring about the substantive
[268 U.S. 652, 673] evils that [the State] has a right to prevent.'
It is true that in my opinion this criterion was departed from
in Abrams v. United States, 250 U.S. 616 , 40 S. Ct. 17, but
the convictions that I expressed in that case are too deep for
it to be possible for me as yet to believe that it and Schaefer
v. United States, 251 U.S. 466 , 40 S. Ct. 259, have settled
the law. If what I think the correct test is applied it is manifest that 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 views. It is said that this manifesto was more than a theory, that
it was an incitement. Every idea is an incitement. It offers
itself for belief and if believed it is acted on unless some
other belief outweighs it or some failure of energy stifles the
movement at its birth. The only difference between the expression
of an opinion and an incitement in the narrower sense is the
speaker's enthusiasm for the result. Eloquence may set fire to
reason. But whatever may be thought of the redundant discourse
before us it had no chance of starting a present conflagration.
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.
If the publication of this document had been laid as an attempt
to induce an uprising against government at once and not at some
indefinite time in the future it would have presented a different
question. The object would have been one with which the law might
deal, subject to the doubt whether there was any danger that
the publication could produce any result, or in other words,
whether it was not futile and too remote from possible consequences.
But the indictment alleges the publication and nothing more.
