Landmark Supreme Court Case: Gitlow v. New York (1925)

by Kwaisi France · July 3, 2020

Gitlow v. New York (1925) is the 50th landmark Supreme Court case, the third in the Speech, Press, and Protest module, featured in the KTB Prep American Government and Civics Series designed to acquaint users with the origins, concepts, organizations, and policies of the United States government and political system. The goal is greater familiarization with the rights and obligations of citizenship at the local, state, national, and global levels and the history of our nation as a democracy. While there is overlap, these landmark cases are separated into cases addressing:

The Supreme Court

The Supreme Court is the highest court in the United States. Article III of the U.S. Constitution created the Supreme Court and authorized Congress to pass laws establishing a system of lower courts. The Constitution elaborated neither the exact powers and prerogatives of the Supreme Court nor the organization of the Judicial Branch as a whole. Thus, it has been left to Congress and to the Justices of the Court through their decisions to develop the Federal Judiciary and a body of Federal law.

The number of Justices on the Supreme Court changed six times before settling at the present total of nine in 1869. Since the formation of the Court in 1790, there have been only 17 Chief Justices* and 102 Associate Justices, with Justices serving for an average of 16 years. On average a new Justice joins the Court almost every two years.

The Supreme Court of the United States hears about 100 to 150 appeals of the more than 7,000 cases it is asked to review every year. That means the decisions made by the 12 Circuit Courts of Appeals across the country and the Federal Circuit Court are the last word in thousands of cases.

Court of Appeals

In the federal court system’s present form, 94 district level trial courts and 13 courts of appeals sit below the Supreme Court. The 94 federal judicial districts are organized into 12 regional circuits, each of which has a court of appeals. The appellate court’s task is to determine whether or not the law was applied correctly in the trial court. Appeals courts consist of three judges and do not use a jury.

The appellate courts do not retry cases or hear new evidence. They do not hear witnesses testify. There is no jury. Appellate courts review the procedures and the decisions in the trial court to make sure that the proceedings were fair and that the proper law was applied correctly.

A court of appeals hears challenges to district court decisions from courts located within its circuit, as well as appeals from decisions of federal administrative agencies. In addition, the Court of Appeals for the Federal Circuit has nationwide jurisdiction to hear appeals in specialized cases, such as those involving patent laws, and cases decided by the U.S. Court of International Trade and the U.S. Court of Federal Claims.

District Courts

The nation’s 94 trial courts are called U.S. District Courts. At a trial in a U.S. District Court, witnesses give testimony and a judge or jury decides who is guilty or not guilty — or who is liable or not liable. District courts resolve disputes by determining the facts and applying legal principles to decide who is right.

Trial courts include the district judge who tries the case and a jury that decides the case. Magistrate judges assist district judges in preparing cases for trial. They may also conduct trials in misdemeanor cases.

There is at least one district court in each state, and the District of Columbia. Each district includes a U.S. bankruptcy court as a unit of the district court.

Bankruptcy Courts

Federal courts have exclusive jurisdiction over bankruptcy cases involving personal, business, or farm bankruptcy. This means a bankruptcy case cannot be filed in state court. Bankruptcy Appellate Panels (BAPs) are 3-judge panels authorized to hear appeals of bankruptcy court decisions. These panels are a unit of the federal courts of appeals, and must be established by that circuit. Five circuits have established panels: First Circuit, Sixth Circuit, Eighth Circuit, Ninth Circuit, and Tenth Circuit.

Gitlow v. New York (1925)

Gitlow Facts:

New York’s Criminal Anarchy Law was passed in 1902 following the assassination of President William McKinley by an anarchist in Buffalo, New York, in September 1901. Under the Criminal Anarchy Law, people seen as activists supporting the destruction of American government through revolutionary means could be arrested in an attempt to prevent American Bolsheviks from gaining a national following.

Following the Red Scare of 1919–20, a variety of leftists, either anarchists, sympathizers with the Bolshevik Revolution, labor activists, or members of a communist or socialist party, were convicted for violating the Espionage Act of 1917 and Sedition Act of 1918 on the basis of their writings or statements. Benjamin Gitlow, a member of the Socialist Party of America, who had served in the New York State Assembly, was charged with criminal anarchy under New York’s Criminal Anarchy Law of 1902 for publishing in July 1919 a document called “Left Wing Manifesto” in The Revolutionary Age, a newspaper for which he served as business manager.

At his trial lasting from January 22 to February 5, 1920, Gitlow argued that since there was no resulting action flowing from the manifesto’s publication, the statute penalized utterances without propensity to incitement of concrete action. The government claimed that the Manifesto’s intent was to convince American readers to commit crimes, and that in itself should be punishable by law.

Gitlow was convicted on February 11, 1920 and sentenced to 5 to 10 years in prison. He served more than two years at Sing Sing prison before his motion to appeal was granted and he was released on bail. The appellate division affirmed his conviction, as did the New York Court of Appeals.

Gitlow Legal Questions and Answers

Q: Does the First Amendment prevent a state from punishing political speech that directly advocates the government’s violent overthrow?

A: No. The free speech clause does not shield Gitlow from the New York statute.

Gitlow Conclusion

7-2 ruling, partially reversing Barron v. Baltimore (1933), holding the Fourteenth Amendment prohibits states from infringing free speech. The Bill of Rights was designed to limit the power of the federal government, the incorporation principle allows it to be applied to states. Here, the defendant was properly convicted under New York’s Criminal Anarchy Law because he disseminated newspapers that advocated the violent overthrow of the government.

Citing Schenck (1919) and Abrams (1919), the Court reasoned the government could punish speech that threatens its basic existence because of the national security implications. Despite the small scale of Gitlow’s actions, they weren’t too insignificant to have an impact.

One of the first major cases involving the incorporation of the Bill of Rights, and one of a series of Supreme Court cases that defined the scope of the First Amendment’s protection of free speech and established the standard to which a state or the federal government would be held when it criminalized speech or writing. Gitlow was the first major First Amendment case that the American Civil Liberties Union argued before the Supreme Court.

On November 9, 1925, Gitlow surrendered to New York Authorities for transportation back to Sing Sing Prison to finish his sentence. On December 11, 1925, New York Gov. Al Smith pardoned him, saying that while Gitlow had been “properly and legally convicted”, he needed to consider “whether or not he has been sufficiently punished for a political crime.” He concluded that “no additional punishment would act as a deterrent to those who would preach an erroneous doctrine of Government.” Gitlow was later briefly elected General Secretary of the American Communist Party in 1929.

The Court used the doctrine first enunciated in Gitlow in De Jonge v. Oregon (1936), Wolf v. Colorado (1949), Gideon v. Wainwright (1963), and McDonald v. Chicago (2010) to extend the reach of the Bill of Rights. Constitutional scholars refer to this as the “incorporation doctrine,” meaning that the Supreme Court has identified rights specified in the Bill of Rights and incorporated them into the liberties covered by the due process clause of the Fourteenth Amendment.

Professor Nate on Gitlow v. New York (1925)

Next Speech, Press, and Protest Case: Whitney v. California (1927)

Previous Speech, Press, and Protest Case: Abrams v. United States (1919)

Next Case: Village of Euclid v. Ambler Realty Co. (1926)

Previous Case: Pierce v. Society of Sisters (1925)

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