Gitlow v. New York Case Brief

Facts of the case

Gitlow, a socialist, was arrested in 1919 for distributing a “Left Wing Manifestothat called for the establishment of socialism through strikes and class action of any form. Gitlow was convicted under New York’s Criminal Anarchy Law, which punished advocating the overthrow of the government by force. At his trial, Gitlow argued that since there was no resulting action flowing from the manifesto’s publication, the statute penalized utterances without propensity to incitement of concrete action. The appellate division affirmed his conviction, as did the New York Court of Appeals, the highest court in that state.

Why is the case important?

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.


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?


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.


The statute does not penalize the utterance or publication of abstract doctrineor 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 doctrineof 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. . . .

  • Advocates: Walter H. Pollak for Gitlow John Caldwell Myers Assistant District Attorney of New York County, for New York W. J. Weatherbee for New York
  • Appellant: Benjamin Gitlow
  • Appellee: People of the State of New York
  • DECIDED BY:Taft Court
  • Location: –
Citation: 268 US 652 (1925)
Argued: Apr 13, 1923 Nov 23, 1923
Decided: Jun 8, 1925
Gitlow v. New York Case Brief