The Gitlow v. New York Case’s Ruling with Reasoning

As a member of the Communist Labor Party of the United States, Benjamin Gitlow participated in the writing and distribution of a pamphlet published by his party called the Left Wing Manifesto. This pamphlet seemed to convince people of the United States to rise up and overthrow their government and support Communism instead. Shortly, Gitlow was arrested and convicted for violating New York’s Criminal Anarchy Law, which made it unlawful to support a violent protest against the government. Gitlow argued that the Criminal Anarchy Law was unconstitutional because it violated his constitutional rights to free speech and press. The court did not grant Gitlow’s appeal by concluding that the Criminal Anarchy Law was constitutional. As Judge Edward T. Sanford wrote, “[A] state may punish utterances endangering the foundations of organized government and threatening its overthrow by unlawful means.” He concluded that Gitlow’s pamphlet was not a mere discussion of ideas. Rather, it was “the language of direct incitement” to promote a violent revolution.

However, Judge Oliver Wendell Holmes disagreed with the decision in this case, and Judge Louis Brandeis concurred with him on this matter. Holmes explained that the mere expression of ideas, separated from action, could not be punished under the “clear and present danger” doctrine he defined in previous cases. Holmes said that there was no evidence that Gitlow’s pamphlet was likely to incite violent revolution and that it posed only a remote threat to social order. This particular case is the basis for establishing the due process clause in the 14th Amendment in order to limit the states’ power to restrict the free speech and press rights of individuals. The incorporation doctrine has been used eventually to be used in most of the federal Bill of Rights in U.S. states.