Gitlow v. New
York

268 U.S.
652(1925)

NAME:

TIME:  Nov. 19^th, 08

PERIOD:  1 

Gitlow v. New York

In the case of Gitlow v. New York, 268 U.S. 652(1925), the justices
of the majority were Pierce Butler, James Clark McReynolds, Edward Terry
Sanford, Harlan Fiske Stone, George Sutherland, William Howard Taft, and Willis
Van Devanter. The ones of the minority were Louis Brandeis and Oliver Wendell
Holmes.

The case arose when the fear of communist subversion gripped the United States. To
prevent any strikes caused by the “Reds,” many states including New York, had
commissions to investigate subversive organizations. In 1919 and 1920 the New
York Commission held raids on communists and seized many people. And at that
time, Benjamin Gitlow was arrested, too. One of the reasons that they arrested
him was that he distributed a book called the Left Wing Manifesto which called a mass to overthrow the organized
government of the United
States. He was later prosecuted in a New York trial court for
challenging the state’s criminal anarchy law. His defense attorneys alleged
that the statute violated the First Amendment for its guarantee of freedom of
expression. However, the defense was not a success. After that trial, Gitlow
appealed.

The opinion of this case was written by Justice Sanford. Just at the
first paragraph of this opinion, he indicated the reason he was accused and
that the decision was affirmed. “Benjamin Gitlow was indicted in the Supreme
Court of New York…for the statutory crime of criminal anarchy…The judgment was
affirmed by the Appellate Division and by the Court of Appeals.”

And through the opinion, he emphasized the contention that the
statute’s terms and the application in this case are repugnant to the due process
clause of the Fourteenth Amendment. “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.” It has the clauses below:

"§ 160. Criminal
anarchy defined. Criminal anarchy is the doctrine that organized government
should be overthrown 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. The advocacy of such doctrine either by word of mouth or writing is a
felony.

"§ 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,

"2. Prints,
publishes, edits, issues or knowingly circulates, sells, distributes or
publicly displays any book, paper, document, or written or printed matter…containing
or advocating, advising or teaching the doctrine that organized government
should be overthrown by force, violence or any unlawful means . . .”

The counts are “…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” and “he had printed,
published and knowingly circulated and distributed a certain paper called
"The Revolutionary Age," containing the writings set forth in the
first count advocating, advising and teaching the doctrine that organized
government should be overthrown by force, violence and unlawful means.” So he
was accused mainly because the publication of “The Left Wing Manifesto” and his
distributing a paper with the words “The Revolutionary Age” both which had
content that anticipated to overthrow the organized government.

“The following facts were established on the trial by undisputed
evidence and admissions: The defendant is a member of the Left Wing Section of
the Socialist Party, a dissenting branch or faction of that party formed in
opposition to its dominant policy of "moderate Socialism."” These
sentences shows the influence of whether the defendant was a member of the Left
Wing Section of the Socialist Party on the judge.

The defense attorney of Gitlow indicated that his action didn’t
disobey the laws. But all of their explanation was denied. “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. They also moved, at the close of the
evidence, to dismiss the indictment and direct an acquittal "on the
grounds stated in the first objection to evidence", and again on the
grounds that "the indictment does not charge an offense" and the
evidence "does not show an offense." These motions were also denied.”

Furthermore, the justice again and again emphasized the possibility
of causing any mess by the publication. And for avoid anything threatening the
country’s structure or constitution, he was absolutely guilty.

In the last, “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.”

In this case, there were no concurring
opinions. The majority of the justices almost had the same thought about the
case.

The dissenting opinion was written by Justice
Holmes. He and Justice Brandeis thought that the judge of this case should be
reversed. “…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 [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…”

“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…The only
difference between the expression of an opinion and an incitement in the
narrower sense is the speaker's enthusiasm for the result…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.” He said that
everything could be an incitement. He thought that if something that was
against the organized government was destined, people should give the ones that
believed that ideas a chance to practice 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.” The above expressed that this judge of the case brought new questions
that whether the judge should consider about the possibility of something that
might threaten the country by a case and whether there was any danger that the
publication could cause.

In the opinion and the dissenting
opinion, we can see that there were some subjective elements in them. In the
opinion, Justice Sanford emphasized that the defendant was a member of the Left
Wing Section of the Socialist Party. It seems that whether the defendant was a
member of the Left Wing Section of the Socialist Party was a factor of the
judge. And in the dissenting opinion, he said something that was his own
thought. 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.

This case was important to the
development of the U.S.’s
law. In the case of Whitney v. California,
similar situations occurred. Whitney was also a member of Communists. This
time, Brandeis and Holmes concurred in the case. In their concurrence, they
wanted to make sure the standard of judging if a speech causes any present
danger.

In the case of Stromberg v, California, the Supreme Court reversed the conviction,
saying that the statute of California
was too broad that it not only banned the violent overthrow to the government
but also the peaceful demands of changes of the government. Stromberg
introduced her campers to Marxist theory, and she also lead children in
reciting a worker’s pledge of allegiance.

Six years later, in the case of DeJonge
v. Oregon,
the Supreme Court overturned DeJonge’s conviction. He once gathered people to
discuss things about the police’s raids to Communists’ houses. They wanted to
protest it. That violated Oregon’s
criminal syndicalism law that prohibited the organization of the Communist
Party. The Supreme Court thought that the meeting was peaceful, not a crime.

I think that the case was decided incorrectly.
Although put things that called for a mass to overthrow the government, he had
no obvious intend to act and had no accurate task to practice the mass. Like
what Justice Holmes and Justice Brandeis said, there was no present danger the
book might cause. We can see that some justices had a passion to loving their
country-which is called patriotism. But possibility of the event should not be
a crime. Almost everyone has the intend to commit a crime, but they just don’t
practice the thought.