Gitlow v. New York

• Author: Jeffrey Lehman, Shirelle Phelps

Page 97

Gitlow v. New York, 268 U.S. 652, 45 S. Ct. 625, 69 L. Ed. 1138, is a 1925 decision by the Supreme Court that upheld the constitutionality of criminal ANARCHY statutes.

The defendant, Benjamin Gitlow, was a member of the Left Wing Section, a splinter group of the Socialist Party. The group formed in opposition to the party's dominant policy of "moderate socialism," and criticized the party for its insistence on introducing SOCIALISM through the legislative process. The Left Wing Section advocated change through militant and revolutionary means. It viewed mass industrial revolution as the mechanism by which the parliamentary state would be destroyed and replaced by a system of communist socialism.

Gitlow was responsible for publishing and disseminating the group's views. He did so in such pamphlets as the "The Left Wing Manifesto." The manifesto was also published in The Revolutionary Age, the official paper of the Left Wing. The opinions expressed in these publications formed the bases for the defendant's convictions under Sections 160 and 161 of the penal law of New York, which were the criminal anarchy statutes.

Section 160 defined criminal anarchy and prescribed that the verbal or written advocacy of the doctrine be treated as a felony. Section 161 delineated the conduct that constituted the crime of advocacy of criminal anarchy and stated that its punishment be imprisonment, a fine, or both. The proscribed conduct consisted of the verbal or written advertisement or teaching of the duty, necessity, or propriety of over-throwing organized government by violence, assassination, or other unlawful acts. A person was also prohibited from publishing, editing, knowingly circulating, or publicly displaying any writing embodying this doctrine.

There was a two-count indictment against Gitlow. The first charged that the defendant had advocated, advised, and taught the duty, necessity, and propriety of unlawfully overthrowing organized government through "The Left Wing Manifesto." The second count charged that he had printed, published, knowingly circulated, and distributed The Revolutionary Age, containing the writings set forth in the first count advocating the doctrine of criminal anarchy.

In his appeal, Gitlow argued that Left Wing publications had resulted in no real action. Because they were merely utterances, he contended that the New York state laws violated the right of free speech...