Gitlow v. New York (1925)

Feb 26

A New Age of Federalism

The relationship between the national government and the states has been anything but static. When Publius was writing to win support for ratification of the proposed constitution in 1788, he could confidently state that “the powers delegated by the proposed constitution to the federal government, are few and defined. Those which are to remain in the state governments, are numerous and indefinite.” The early stage of federalism has been described as state-centered federalism because, as James Madison suggested in Federalist 45, the state governments would play a larger role than the national government in the day-to-day affairs of politics. Looking back from the present to the framing of the Constitution causes one to wonder how the relationship between the national government and the states changed so dramatically. Robert A. Nisbet notes in The Present Age that the centralization of power is one of the most striking things that would shock the Framers if they were transported from their age to ours. Their shock would, no doubt, be due in part to a lack of knowledge about what transpired in between their age and ours. The evolution of federalism is a long and complex story that unfolds over generations. Gitlow v. New York (1925) is an important part of that story. It helps to explain how Madison’s description in Federalist 45 was inverted, how state-centered federalism became nation-centered federalism.

As much as any factor, the incorporation of the Bill of Rights to the states shifted power from the states to the national government. Because incorporation was selective—the Bill of Rights was incorporated in small increments, one or two rights or civil liberties at a time—rather than total, the shift in power was gradual. Incorporation was put into motion by the Supreme Court in Gitlow v. New York, although a few previous cases gave tepid support for incorporation. Dating back to Barron v. Baltimore (1833), most cases that considered incorporation prior to Gitlow rejected it.

In addition to its role in incorporating the Bill of Rights, Gitlow is important because it created a new standard for judging free speech cases, but its more lasting importance has less to do with free speech standards and more to do with incorporation. Consequently, an analysis of the case requires highlighting two central issues: a) what the Court ruled about free speech and press, and b) what the Court ruled about the application of the Bill of Rights to the states. The Court’s ruling on the first matter was contingent on its ruling on the second matter.

The Legal Issues in Gitlow v. New York

Benjamin Gitlow was a political radical who openly advocated the violent overthrow of government. He was, at various times in his life, a socialist, a Marxist, and an anti-communist. After he and other radicals published a pamphlet, Left-Wing Manifesto, he was arrested for violating a New York criminal anarchy law that prohibited the advocacy of overthrowing the government by violence or unlawful means. The New York law was a reaction to the assassination of President McKinley by Leon Czolgosz in Buffalo. The assassination led some to suggest that it was not enough to punish violent anarchists and revolutionaries for their actions. It would help to prevent such actions if the ideas that encouraged them were subject to criminal prosecution. Czolgosz, for example, was influenced by the anarchist thinker and activist Emma Goldman. He may not have engaged in assassination if she had been deterred from encouraging violent resistance to the government. The eighteenth century English legal theorist and judge William Blackstone argued that free speech and press prohibited prior restraint. Followers of Blackstone suggested that the government could not prohibit the publication of ideas, but it could make the expression of pernicious ideas criminal as a means for deterring them from being circulated and causing political violence.

The 1902 New York criminal anarchy law under which Gitlow was prosecuted and imprisoned was designed to deter individuals and groups from expressing anarchic or revolutionary ideas and to punish them if they did. Opponents of such laws argued that there was a difference between advocating ideas and acting on them. The former should be protected, but government had the authority to regulate the latter.

In addition to sorting out the boundaries of free expression, the Court had to decide if New York’s law was subject to review under the First Amendment. If state laws were subject to First Amendment review, the Court would have to decide if the New York Criminal Anarchy Act was consistent with the First Amendment.

The Court’s Ruling in Gitlow v. New York

Justice Edward Sanford wrote for the Court that divided 7-2 for New York. He explained that the Fourteenth Amendment Due Process Clause requires states, not just Congress, to comply with the First Amendment freedoms of speech and press. In doing so, the Court incorporated these two clauses of the First Amendment to the states. Oddly enough, this cataclysmic change in constitutional law was not discussed in detail in either Sanford’s majority opinion or in Justice Holmes’s dissent. It was mentioned in passing by both Justices. They each devoted one sentence to it; they both agreed that the Fourteenth Amendment incorporated the First Amendment protections for speech and press. Sanford did not argue that the Bill of Rights apply to the states; he assumed it. Specifically, he wrote: “For the present purposes we may and do assume that freedom of speech and of the press…are among the fundamental personal rights and ‘liberties’ protected by the due process clause of the Fourteenth Amendment from impairment by the States.” Sanford did not provide a review of the numerous cases that ruled to the contrary or suggest that they were not controlling in Gitlow, except for a one-sentence rejection of the Court’s ruling in Prudential Insurance Co. v. Cheek (1922) that unequivocally denied incorporation of the First Amendment freedom of speech.

Justice Sanford noted as well that First Amendment freedoms are not absolute. States have police powers that can be used to protect and promote the health, safety, welfare, and morals of their citizens. Who decides if a limitation on speech or press is warranted by the legitimate exercise of police powers? Sanford suggested that courts should defer to legislatures, and he quoted from Great Northern Ry. v. Clara (1918). The “State is primarily the judge of regulations required in the interest of public safety and welfare.” Courts should only strike down such laws when “they are arbitrary or unreasonable attempts to exercise authority vested in the State in the public interest.” In Sanford’s view, the New York sedition law was neither arbitrary nor unreasonable. Therefore, it did not violate the First Amendment.

Presuming that state laws are constitutional did not mean that the Supreme Court would refrain from scrutinizing the New York sedition law and Gitlow’s behavior. Sanford noted that inciting others to engage in violent behavior, including the overthrow of government, is dangerous. It falls within the purview of the state legislature to regulate or prohibit such expression. The public order is endangered by calls to action that may lead to violent revolution. Do the actual consequences of advocacy matter? Sanford suggested that “the immediate danger is nonetheless real and substantial, because the effect of a given utterance cannot be accurately foreseen. Advocacy of ideas can be punished because the government cannot measure the danger “in the nice balance of a jeweler’s scale.” The government must assess the risk because the consequence of waiting for the threat to be realized is that it will be too late to act or much greater force will be used to subdue the rebellion. “A single revolutionary spark may kindle a fire that, smouldering [sic] for a time, may burst into a sweeping and destructive conflagration.”

Justice Sanford’s opinion uses the bad tendency doctrine embraced by the Court in U.S. ex rel. Turner v. Williams (1904), one of the many competing tests created by the Supreme Court that gives specific meaning to the First Amendment freedoms of speech and press. The bad tendency doctrine assumes that the First Amendment does not protect ideas that are potentially harmful to society or individuals. To prove that a law restricting free expression does not violate the First Amendment, governments have to demonstrate that the law in question protects citizens and the government itself from a specific harm that can result from the regulated expression. Gitlow’s expression intended to create civil unrest that would lead to the overthrow of existing governments.

Justice Holmes’s Dissent

Justice Oliver Wendell Holmes’s dissent suggested that the clear and present danger test he created in Schenck v. U.S. (1919) should be used to decide the Gitlow case rather than the bad tendency test. In terms of government’s power to limit expression, the former was a more restrictive standard than the latter. In his dissenting opinion in Abrams v. U.S. (1919), Holmes argued that for expression to be punishable by government it must “imminently threaten immediate interference” with legitimate government actions. Gitlow’s Left-Wing Manifesto did not meet this standard because it did not present an imminent threat. It was an expression of theory not a call to action that threatened civil order. Holmes, however, went further when he argued that:

Every idea is an incitement. 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. Eloquence may set fire to reason. But whatever may be thought of the redundant discourse before us it had no chance of starting a present conflagration. 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 final sentence of the penultimate paragraph of Holmes’s dissent is odd. It seems to misunderstand the very meaning of American constitutionalism and its commitment to representative democracy. Holmes did not explain what he meant by the dominant forces of the community, nor did he explain why dominant forces should always get their way. Madison’s Federalist 10 is a categorical rejection of the majority faction or pure democracy theory that Holmes embraces.

Gitlow’s Legacy

It is easy to become fixated on the part of the Court’s ruling that pertains to free speech and press and lose sight of what is its more significant legacy, the incorporation of freedom of speech and press to the states. The states may have won this legal battle but overtime the war of attrition would be won by the national government using the doctrine of incorporation to depreciate the states’ police powers. Gitlow v. New York was silently overturned by Brandenburg v. Ohio (1969), which created the “imminent lawless action” test.