"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. "
U.S. Supreme Court
GITLOW v. NEW YORK, 268 U.S. 652 (1925)
268 U.S. 652
PEOPLE OF THE STATE OF NEW YORK.
Reargued Nov. 23, 1923.
Decided June 8, 1925.
[268 U.S. 652, 653] Messrs. Walter H. Pollak and Walter Nelles,
both of New York City, for plaintiff in error.
Messrs. John Caldwell Myers, of New York City, and W. J. Wetherbee and Claude T. Dawes, both of Albany, N. Y., for the People of the State of New York.
[268 U.S. 652, 654]
Mr. Justice SANFORD delivered the opinion of the Court.
Benjamin Gitlow was indicted in the Supreme Court of New York, with three others, for the statutory crime of criminal anarchy. New York Penal Law, 160, 161.1 He was separately tried, convicted, and sentenced to imprisonment. The judgment was affirmed by the Appellate Division and by the Court of Appeals. People v. Gitlow, 195 App. Div. 773, 187 N. Y. S. 783; 234 N. Y. 132, 136 N. E. 317; and 234 N. Y. 529, 138 N. E. 438. The case is here on writ of error to the Supreme Court, to which the record was remitted. 260 U.S. 703 , 43 S. Ct. 163.
The contention here is that the statute, by its terms and as applied in this case, is repugnant to the due process clause of the Fourteenth Amendment. Its material provisions are:
'Sec. 160. Criminal Anarchy Defined. Criminal anarchy is the doctrine that organized government should be overthrown by force or violence, or by assessination of the executive head or of any of the executive officials of government, or by any unlawful means. The advocacy of such doctrine either by word of mouth or writing is a felony.
'Sec. 161. Advocacy of Criminal Anarchy. Any person who:
'1. By word of mouth or writing advocates, advises or teaches the duty, necessity or propriety of overthrowing or overturning organized government by force or violence, or by assassination of the executive head or of any of the executive officials of government, or by any unlawful means; or,
'2. Prints, publishes, edits, issues or knowingly circulates, sells, distributes or publicly displays any book, paper, document, or written or printed matter in any [268 U.S. 652, 655] form, containing or advocating, advising or teaching the doctrine that organized government should be overthrown by force, violence or any unlawful means, ...
'Is guilty of a felony and punishable' by imprisonment or fine, or both.
At the outset of the trial the defendant's counsel objected to the introduction of any evidence under the [268 U.S. 652, 660] indictment on the grounds that, as a matter of law, the Manifesto 'is not in contravention of the statute,' and that 'the statute is in contravention of' the due process clause of the Fourteenth Amendment. This objection was denied....
The precise question presented, and the only question which we
can consider under this writ of error, then is, whether the statute,
as construed and applied in this case, by the State courts, deprived
the defendant of his liberty of expression in violation of the
due process clause of the Fourteenth Amendment.
The statute does not penalize the utterance or publication of abstract 'doctrine' or academic discussion having no quality of incitement to any concrete action. It is not aimed against mere historical or philosophical essays. It does not restrain the advocacy of changes in the form of government by constitutional and lawful means. What it prohibits is language advocating, advising or teaching [268 U.S. 652, 665] the overthrow of organized government by unlawful means. These words imply urging to action...
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. We do not regard the incidental statement in Prudential Ins. Co. v. Cheek, 259 U.S. 530, 543 , 42 S. Ct. 516, 27 A. L. R. 27, that the Fourteenth Amendment imposes no restrictions on the States concerning freedom of speech, as determinative of this question...
It is a fundamental principle, long established, that the freedom of speech and of the press which is secured by the Constitution, does not confer an absolute right to speak or publish, without responsibility, whatever one may choose, or an unrestricted and unbridled license that gives immunity for every possible use of language and prevents the punishment of those who abuse this freedom. 2 Story on the Constitution ( 5th Ed.) 1580, p. 634; Robertson v. Baldwin, 165 U.S. 275, 281 , 17 S. Ct. 326; Patterson v. Colorado, 205 U.S. 454, 462 , 27 S. Ct. 556, 10 Ann. Cas. 689; Fox v. Washington, 236 [268 U.S. 652, 667] U. S. 273, 276, 35 S. Ct. 383; Schenck v. United States, 249 U.S. 47, 52 , 39 S. Ct. 247; Frohwerk v. United States, 249 U.S. 204, 206 , 39 S. Ct. 249; Debs v. United States, 249 U.S. 211, 213 , 39 S. Ct. 252; Schaefer v. United States, 251 U.S. 466, 474 , 40 S. Ct. 259; Gilbert v. Minnesota, 254 U.S. 325, 332 , 41 S. Ct. 125; Warren v. United States, 183 F. 718, 721, 106 C. C. A. 156, 33 L. R. A. (N. S.) 800. Reasonably limited, it was said by Story in the passage cited, this freedom is an inestimable privilege in a free government; without such limitation, it might become the scourge of the republic.
That a State in the exercise of its police power may punish those who abuse this freedom by utterances inimical to the public welfare, tending to corrupt public morals, incite to crime, or disturb the public peace, is not open to question. ...
And, for yet more imperative reasons, a State may punish utterances endangering the foundations of
organized government and threatening its overthrow by unlawful
means. These imperil its own existence as a constitutional State. Freedom
of speech and press, said Story, supra, does not protect disturbances
to the public peace or the attempt to subvert the government.
It does not protect publications or teachings which tend to subvert
or imperil the government or to impede or hinder it in the performance
of its governmental duties. State v. [268 U.S. 652, 668] Holm, supra, p. 275 (166 N. W.
181). It does not protect publications prompting the overthrow
of government by force; the punishment of those who publish articles
which tend to destroy organized society being essential to the
security of freedom and the stability of the state. People v.
Most, supra, pp. 431, 432 (64 N. E. 175). And a State may penalize utterances which openly advocate the
overthrow of the representative and constitutional form of government
of the United States and the several States, by violence or other
unlawful means. People v. Lloyd, 304 Ill. 23, 34, 136 N. E. 505. See, also,
State v. Tachin, 92 N. J. Law, 269, 274, 106 A. 145, and People
v. Steelik, 187 Cal. 361, 375, 203 P. 78. In short this freedom
does not deprive a State of the primary and essential right of
self preservation; which, so long as human governments endure,
they cannot be denied. Turner v. Williams, 194 U.S. 279, 294
, 24 S. Ct. 719. In Toledo Newspaper Co. v. United States, 247
U.S. 402, 419 , 38 S. Ct. 560, 564 (62 L. Ed. 1186), it was said:
'The safeguarding and fructification of free and constitutional institutions is the very basis and mainstay upon which the freedom of the press rests, and that freedom, therefore, does not and cannot be held to include the right virtually to destroy such institutions.'
By enacting the present statute the State has determined, through its legislative body, that utterances advocating the overthrow of organized government by force, violence and unlawful means, are so inimical to the general welfare and involve such danger of substantive evil that they may be penalized in the exercise of its police power. That determination must be given great weight. Every presumption is to be indulged in favor of the validity of the statute. ...
The State cannot reasonably be required to measure the danger
from every such utterance in the nice balance of a jeweler's
scale. A single revolutionary spark may kindle a fire that, smouldering
for a time, may burst into a sweeping and destructive conflagration.
It cannot be said that the State is acting arbitrarily or unreasonably
when in the exercise of its judgment as to the measures necessary
to protect the public peace and safety, it seeks to extinguish
the spark without waiting until it has enkindled the flame or
blazed into the conflagration. It cannot reasonably be required to defer the adoption of measures
for its own peace and safety until the revolutionary utterances
lead to actual disturbances of the public peace or imminent and
immediate danger of its own destruction; but it may, in the exercise
of its judgment, suppress the threatened danger in its incipiency.
In People v. Lloyd, supra, p. 35 (136 N. E. 512), it was aptly
'Manifestly, the legislature has authority to forbid the advocacy of a doctrine designed and intended to overthrow the government without waiting until there is a present and imminent danger of the success of the plan advocated. If the State were compelled to wait until the apprehended danger became certain, then its right to protect itself would come into being simultaneously with the overthrow of the government, when there [268 U.S. 652, 670] would be neither prosecuting officers nor courts for the enforcement of the law.'
We cannot hold that the present statute is an arbitrary or unreasonable exercise of the police power of the State unwarrantably infringing the freedom of speech or press; and we must and do sustain its constitutionality.
This being so it may be applied to every utterance-not too trivial to be beneath the notice of the law-which is of such a character and used with such intent and purpose as to bring it within the prohibition of the statute. This principle is illustrated in Fox v. Washington, supra, p. 277 ( 35 S. Ct. 383); Abrams v. United States, 250 U.S. 616, 624 , 40 S. Ct. 17; Schaefer v. United States, supra, pp. 479, 480 (40 S. Ct. 259); Pierce v. United States, 252 U.S. 239, 250 , 251 S., 40 S. Ct. 205,10 and Gilbert v. Minnesota, supra, p. 333 (41 S. Ct. 125). In other words, when the legislative body has determined generally, in the constitutional exercise of its discretion, that utterances of a certain kind involve such danger of substantive evil that they may be punished, the question whether any specific utterance coming within the prohibited class is likely, in and of itself, to bring about the substantive evil, is not open to consideration. It is sufficient that the statute itself be constitutional and that the use of the language comes within its prohibition.....
And finding, for the reasons stated, that the statute is not in itself unconstitutional, and that it has not been applied in the present case in derogation of any constitutional right, the judgment of the Court of Appeals is
Mr. Justice HOLMES (dissenting).
Mr. Justice BRANDEIS and I are of opinion that this judgment should be reversed. The general principle of free speech, it seems to me, must be taken to be included in the Fourteenth Amendment, in view of the scope that has been given to the word 'liberty' as there used, although perhaps it may be accepted with a somewhat larger latitude of interpretation than is allowed to Congress by the sweeping language that governs or ought to govern the laws of the United States. If I am right then I think that the criterion sanctioned by the full Court in Schenck v. United States, 249 U.S. 47, 52 , 39 S. Ct. 247, 249 (63 L. Ed. 470), applies:
'The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive [268 U.S. 652, 673] evils that [the State] has a right to prevent.'
It is true that in my opinion this criterion was departed from in Abrams v. United States, 250 U.S. 616 , 40 S. Ct. 17, but the convictions that I expressed in that case are too deep for it to be possible for me as yet to believe that it and Schaefer v. United States, 251 U.S. 466 , 40 S. Ct. 259, have settled the law. If what I think the correct test is applied it is manifest that there was no present danger of an attempt to overthrow the government by force on the part of the admittedly small minority who shared the defendant's views. It is said that this manifesto was more than a theory, that it was an incitement. 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.
If the publication of this document had been laid as an attempt to induce an uprising against government at once and not at some indefinite time in the future it would have presented a different question. The object would have been one with which the law might deal, subject to the doubt whether there was any danger that the publication could produce any result, or in other words, whether it was not futile and too remote from possible consequences. But the indictment alleges the publication and nothing more.