Gitlow v.

New York
(Communist Revolutionary)

v.

(State)

268 U.S. 652, 45 S.Ct. 625 (1925)

SUPREME COURT SUPERSEDES "CLEAR AND PRESENT DANGER" TEST WITH "REASONABLENESS" STANDARD

INSTANT FACTS A communist radical, jailed

for urging revolution, challenges a state law
which criminalized advocating unlawful overthrow of government.
BLACK LETTER RULE State bans on advocacy of unlawful overthrow are valid exercises of
police power, unless they are unreasonable.

PROCEDURAL BASIS
In criminal prosecution for criminal anarchy, post-conviction appeal.

FACTS

In 1919, Socialist Party extremists formed the radical Left Wing Section, which advocated revolution. Left
Wing Section member Gitlow (D) published its newspaper, The Revolutionary Age, which condemned
"moderate Socialism" for accepting the parliamentary state, repudiated introducing Socialism by
legislative means, and advocated "Communitst Revolution," "class struggle," mass revolts and strikes,
destroying the parliamentary state to found a "revolutionary dictatorship of the proletariat," etc. New
York State (P) prosecuted Gitlow (D) for statutory criminal anarchy. The statute says, "Criminal anarchy
is the doctrine that organized government should be overthrown by force or violence . . . or . . .
assassination . . . or by any unlawful means. The advocacy of such doctrine . . . is a felony." Gitlow (D)
was convicted; he now appeals, contending the statute violates the Fourteenth Amendment Due
Process Clause.

ISSUE

Does a statute which bans advocating the overthrow of government by unlawful means violate the
Fourteenth Amendment Due Process Clause?
DECISION AND RATIONALE
(Sanford, J.) No. State bans on advocacy of unlawful overthrow are valid exercises of police power,
unless they are unreasonable. We assume the Fourteenth Amendment's Due Process Clause extends
to protect against states' infringement of free speech. A State may exercise its police power to punish
utterances which: threaten the public welfare, corrupt public morals, incite crime, or disturb public
peace. Such a policy is needed to allow the State to preserve itself. Police statutes may be declared
unconstitutional only if arbitrary or unreasonable. In determining the statute's validity, every presumpiton
is to be indulged in favor of the statute's validity. It is clear that utterances inciting overthrow of
government by unlawful means present sufficient danger of substantive evil that the state may punish
them. The State need not prove the utterance would necessarily cause violence, and need not wait until
actual disturbances are imminent. A single revolutionary spark may kindle a fire that, smoldering, may
burst into sweeping conflagration. We sustain the statute here, since it was neither arbitrary nor
unreasonable to prevent such incitement. Affirmed.
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653

Gitlow v. New York (Continued)

DISSENT
(Holmes, J.) I would apply the "dear and present danger" test. Under it, I find there was no present
danger of the government being overthrown by Gitlow's (D) few supporters. The principle of free
speech requires allowing ideas of communist dictatorship, even if they are destined to be accepted by
the majority.

Analysis:
The Gitlow court opted to defer to the state legislatures in not applying the clear and present danger
test. A great disadvantage to the Court's decision was a lack of uniformity in the protection of U.S.
citizens' freedom of speech. Circumstances surrounding an individual's speech would be viewed
according to the local statute instead of one federal clear and present danger test. Thus, a speaker in
New York may find less protection than a writer in California. According to the Court, only when the
statute prohibits certain acts and not speech directly would the clear and present danger test apply.
Procedurally, this case is the first to apply the First Amendment to state laws, by finding the Fourteenth
Amendment Due Process Clause (which is applicable to states) also incorporates the First Amendment.
Also, this is the first case to move away from the prior "clear and present danger" test, in favor of a
"reasonableness" standard.

CASE VOCABULARY
CRIMINAL ANARCHY: Urging the overthrow of government or business by violence or other unlawful
means, a.k.a. "criminal syndicalism."
CRIMINAL SYNDICALISM: Urging the overthrow of government or business by violence or other
unlawful means.
FOURTEENTH AMENDMENT DUE PROCESS CLAUSE: Constitutional provision requiring that, before
the government can fine, imprison, or execute a person, it must follow a fair procedure. Supreme Court
case law holds that this applies to states' laws, so it can be used to challenge state law as
unconstitutional.
POLICE POWER: States' right to regulate in the interests of public safety, health, morality, etc.

654

H I G H

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