Gitlow v. New York

Following is the case brief for Gitlow v. New York, United States Supreme Court, (1925)

Case summary for Gitlow v. New York:

  • Gitlow was arrested after distributing socialist material he published in a newspaper.
  • New York convicted Gitlow under a statute which prohibited advocacy of criminal anarchy.
  • Gitlow challenged his conviction claiming the state statute was unconstitutional under the First Amendment.
  • The Supreme Court affirmed the lower court’s judgment because it found that it was reasonably foreseeable public harm could follow speech advocating criminal anarchy.

Gitlow v. New York Case Brief

Statement of the facts:

New York passed a law prohibiting the written or verbal advocacy of criminal anarchy. Gitlow, who was a socialist, was arrested after distributing “The Left-Winged Manifesto” advocating for Socialism in America. Gitlow challenged the law claiming that there was no conduct incited as a result of his distribution. Gitlow took the position that his speech was nothing more than an utterance and no clear and present danger resulted. The trial court convicted Gitlow anyways.

Procedural History:

Gitlow appealed his conviction and appealed to the Supreme Court of the United States.

Rule of Law or Legal Principle Applied:

A state may construct a statute to use state police powers in order to regulate speech and the press, unless they are unreasonably or arbitrarily exercised.

Issue and Holding:

Does a New York state statute criminalizing the spread of a belief in criminal anarchy through the means of verbal and written communication violate the First or 14th Amendment? No.


The Supreme Court affirmed Gitlow’s conviction.


  • The Court held that a state legislature is constitutionally permitted to criminalize speech inciting detrimental action where such action is only reasonably foreseeable.

The Court held, that in this context, freedoms of the press and speech under the First Amendment are considered protected liberty interests under the Due Process Clause of the 14th Amendment. The state statute limited these freedoms by restrictions on concrete speech that have the effect of advocating, advising, or overthrowing organized government through unlawful means.

As a result, the statute only criminalized words that imply an incitement to act. Freedoms of speech and the press are established under the Constitution. However, it is also established that these freedoms are not absolute as states are given the power under the Constitution to limit expressions of speech and the press. Expressions which tend to corrupt public morals, incite criminal activity, or disrupt the public peace.

Here, the state legislature determined that such speech advocating the overthrow of organized government through force, violence, and unlawful conduct is dangerous enough to the public welfare to warrant an exercise of state police power. The courts must give the determination of a state’s legislature great weight, and presumed a statute is valid.

Statutes regulating speech and the press can only be unconstitutional when they are unreasonable or arbitrary, under the state’s police power. Here, the New York legislature acted reasonably in finding that speech advocating the overthrow of organized government is detrimental to the state’s interests in public peace and state security. Under the Constitution, a state must not wait until a breach of the peace is foreseeable because it could damage the public welfare.

Concurring or Dissenting opinion:

Dissenting (Holmes):

The majority was wrong in applying a reasonableness test and should have applied the clear and present danger test. In applying the clear and present danger test, Gitlow’s convictions would have been reversed as he should have been able to express his views in the marketplace of ideas.


Gitlow v. New York outlines the great levels of protection afforded under the First Amendment. This right is extended so long as the individual’s actions are legal. Spreading speech advocating for the unlawful overthrow of the government is not protected speech.

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