Gitlow v. New York (1925) is the Supreme Court decision that upheld Benjamin Gitlow’s criminal conviction for publishing a revolutionary socialist pamphlet, but in the process assumed for the first time that the First Amendment’s protections for speech and press apply to state governments through the Fourteenth Amendment. Gitlow lost his case 7–2 and went to prison. The reasoning the Court used to get there, however, launched what constitutional lawyers call the incorporation doctrine, and it reshaped American free speech law far more than the conviction itself.
Who Benjamin Gitlow Was and What He Published
Gitlow belonged to the Left Wing Section of the Socialist Party, a breakaway faction that pushed for more aggressive revolutionary tactics than the party’s mainstream. In 1919, he helped publish the “Left Wing Manifesto” in The Revolutionary Age, the faction’s newspaper. He sat on the paper’s board of managers, worked as its business manager, and personally delivered the manuscript to the printer.1Justia U.S. Supreme Court Center. Gitlow v. People of New York
The manifesto called for socialism in the United States through mass strikes and other revolutionary action, and it advocated the overthrow of organized government by force.2National Constitution Center. Gitlow v. New York New York prosecutors charged Gitlow under the state’s Criminal Anarchy Law, Penal Law sections 160 and 161. Section 160 defined criminal anarchy as the doctrine that organized government should be overthrown by force or violence. Section 161 made it a felony to advocate that doctrine in speech or writing, or to print, publish, or distribute materials containing it.1Justia U.S. Supreme Court Center. Gitlow v. People of New York
At trial, Gitlow’s lawyers argued the manifesto was political theory, not a call to action. The prosecution called it incitement. The jury convicted, and the judge imposed the maximum sentence of five to ten years. New York’s appellate courts affirmed, and Gitlow took his case to the Supreme Court.
The Constitutional Question
The appeal put a question in front of the Court that the justices had never squarely answered: does the First Amendment restrict state governments, or only Congress?
For nearly a century, the answer had been that it did not. In Barron v. Baltimore (1833), Chief Justice John Marshall ruled that the Bill of Rights limited only the federal government, leaving states free to enact speech restrictions that would have been unconstitutional if Congress had passed them.3Justia U.S. Supreme Court Center. Barron v. Mayor and City Council of Baltimore, 32 U.S. 243 (1833)4United States Courts. Now Cherished, Bill of Rights Spent a Century in Obscurity
Gitlow’s lawyers argued that the Fourteenth Amendment, ratified in 1868, had changed the picture. Its Due Process Clause forbids states from depriving any person of “life, liberty, or property, without due process of law.”5Congress.gov. Constitution of the United States – Fourteenth Amendment The word “liberty,” they argued, had to include the freedoms of speech and press. New York countered that its Criminal Anarchy Law was a straightforward exercise of the state’s police power to protect public safety, an authority states have always held.
The 7–2 Ruling and the Bad Tendency Test
Justice Edward Sanford, writing for the majority, upheld the conviction. A state does not have to wait for an attempted revolution before it acts, the Court reasoned. Speech advocating the violent overthrow of government is an abuse of free expression, not a legitimate exercise of it.1Justia U.S. Supreme Court Center. Gitlow v. People of New York
To reach that result, the majority applied what scholars call the “bad tendency test.” Under this standard, the government can prohibit speech if it has a natural tendency to bring about a harm the state has authority to prevent. The speech does not need to create any immediate danger. If a legislature decides a category of speech threatens public welfare, courts should defer.1Justia U.S. Supreme Court Center. Gitlow v. People of New York
That was a looser standard than the “clear and present danger” test Justice Holmes had introduced six years earlier in Schenck v. United States. Clear and present danger asked whether speech created an immediate risk under the specific circumstances. Bad tendency asked only whether the speech might lead to bad results at some point. In practice, the difference gave legislatures broad authority to criminalize political speech long before any actual threat took shape.
The Holmes and Brandeis Dissent
Justices Oliver Wendell Holmes and Louis Brandeis dissented, and their opinion has outlasted the majority’s in influence. Holmes argued that the clear and present danger test should have applied and that Gitlow’s manifesto posed no real threat. “Whatever may be thought of the redundant discourse before us,” he wrote, “it had no chance of starting a present conflagration.”1Justia U.S. Supreme Court Center. Gitlow v. People of New York
Holmes rejected the premise that political theory should be treated as a criminal act. “Every idea is an incitement,” he wrote. “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.”1Justia U.S. Supreme Court Center. Gitlow v. People of New York
The dissent’s most quoted passage put the case for democratic competition among ideas: “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 remedy for dangerous ideas, in other words, is more speech. That view eventually prevailed.
How Gitlow Applied the Bill of Rights to the States
The paradox of Gitlow is that its most important contribution to constitutional law appears in a passage that was not technically part of the holding. Before rejecting Gitlow’s free speech claim, Justice Sanford wrote: “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.”1Justia U.S. Supreme Court Center. Gitlow v. People of New York
The Court used “assume” rather than “hold,” which meant it was not definitively deciding the question. But the assumption stuck. Every later case treated it as settled. Two years afterward, in Fiske v. Kansas (1927), the Court relied on that assumption to strike down a state speech restriction for the first time, overturning a conviction under a Kansas criminal syndicalism statute because there was no evidence the defendant had advocated violence or unlawful action.6Justia U.S. Supreme Court Center. Fiske v. Kansas, 274 U.S. 380 (1927)
From there, selective incorporation gathered momentum. Freedom of the press was applied to the states in 1931, freedom of assembly in 1936, free exercise of religion in 1940, and the Establishment Clause in 1947. Over the following decades, most of the rest of the Bill of Rights followed, including protections against unreasonable searches, the right to counsel, and protections against self-incrimination and cruel punishment. Gitlow was the case that opened the door.
The Speech Standard Today
The bad tendency test did not survive. Courts moved gradually toward the stricter approach Holmes and Brandeis had urged in dissent. The decisive shift came in Brandenburg v. Ohio (1969), which held that the government cannot punish advocacy of illegal action “except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”7Justia U.S. Supreme Court Center. Brandenburg v. Ohio, 395 U.S. 444 (1969)
Brandenburg protects far more speech than Gitlow allowed. Under Gitlow, a state could criminalize speech simply because it might eventually contribute to harmful outcomes. Under Brandenburg, the government must show both that the speaker intended to provoke immediate illegal action and that the speech was actually likely to produce it. Abstract advocacy of revolution, political theory about overthrowing capitalism, and even heated rhetoric about the need for violent change are all protected unless they cross into direct, imminent incitement. Under today’s standard, Gitlow’s manifesto would almost certainly be protected speech.
Federal law still contains a statute aimed at advocating government overthrow. Under 18 U.S.C. § 2385, it remains a federal crime to knowingly advocate the overthrow of any government in the United States by force or violence, punishable by up to twenty years in prison, and a conviction bars the person from federal employment for five years.8Office of the Law Revision Counsel. 18 USC 2385 – Advocating Overthrow of Government After Brandenburg, any prosecution under that statute would have to meet the imminent lawless action standard, which makes it very difficult to reach anything resembling political speech.
What Happened to Benjamin Gitlow
Gitlow did not serve his full sentence. He had already spent roughly three years in prison, including a stint from February 1920 to April 1922 and an additional three months after an unfavorable appeals court ruling. In December 1925, months after the Supreme Court’s decision, New York Governor Al Smith pardoned him.
His politics later reversed. After involvement with the Communist Party through the late 1920s, he was expelled in 1929 during an internal factional dispute. By the end of the 1930s he had become a committed anti-communist, eventually joining the Republican Party. He wrote two widely read books exposing American communism that gained particular prominence during the McCarthy era, and he held to that stance until his death in 1965.
Gitlow lost his case, but the framework the decision built has done more to protect free expression than almost any other ruling of its era. Because of the incorporation move the Court made in 1925, no state can silence political dissent today without answering to the federal Constitution, and the Holmes dissent that the case provoked laid the intellectual foundation for the speech protections that followed.