Gitlow was convicted under a state statute proscribing advocacy of the overthrow of government by force. In a paper called The Revolutionary Age, he had published "The Left Wing Manifesto," denouncing moderate socialism and prescribing "Communist revolution." There was no evidence of any effect resulting from the publication. Rejecting the CLEAR AND PRESENT DANGER test which OLIVER WENDELL HOLMES and LOUIS D. BRANDEIS reasserted in their dissent, Justice EDWARD SANFORD for the Court upheld the statute. Enunciating what subsequently came to be called the remote BAD TENDENCY TEST, Sanford declared that the state might "suppress the threatened danger in its incipiency." "It cannot reasonably be required to defer the adoption of measures for its own ? safety until the revolutionary utterances lead to actual disturbances of the public peace or imminent and immediate danger of its own destruction."
Unwilling to reverse its decision in SCHENCK V. UNITED STATES (1919), the Court limited the clear and present danger test enunciated there to the situation in which a speaker is prosecuted under a statute prohibiting acts and making no reference to language. Under such a statute the legislature has made no judgment of its own as to the danger of any speech, and the unlawfulness of the speech must necessarily depend on whether "its natural tendency and probable effect was to bring about the substantive evil" that the legislature had proscribed. In short, Sanford sought to confine the danger test to its origin in the law of attempts and to strip it of its imminence aspect. He argued that where a legislature itself had determined that a certain category of speech constituted a danger of substantive evil, "every presumption [was] to be indulged in favor of the validity" of such an exercise of the police power.
The PREFERRED FREEDOMS doctrine that became central to the speech cases of the next two decades was largely directed toward undermining the Gitlow position that state statutes regulating speech ought to be subject to no more demanding constitutional standards than the reasonableness test applied to state economic regulation.
The Gitlow formula was rejected in the 1930s, but the Court returned to some of its reasoning in the 1950s, particularly to the notion that where revolutionary speech is involved, government need not wait until "the spark ? has enkindled the flame or blazed into the conflagration." Such reasoning...