Gitlow v. New York

268 U.S. 652 (1925)

Quick Summary

Gitlow (defendant) distributed a socialist manifesto in violation of a New York law against advocating for government overthrow by force. He was convicted, and his challenge reached the Supreme Court.

The issue was whether this statute violated Gitlow’s Fourteenth Amendment rights. The Supreme Court upheld his conviction, affirming that states can limit speech that threatens government stability.

Facts of the Case

Benjamin Gitlow (defendant), a socialist, was apprehended for disseminating a manifesto that called for the establishment of socialism through revolutionary means, including mass strikes and actions. This act was in violation of a New York statute that criminalized the advocacy of governmental overthrow by force or violence.

Gitlow contended that his actions constituted mere speech that did not incite any clear and present danger to the government. Despite his argument, he was convicted under the New York statute. Gitlow challenged his conviction on the grounds that the statute infringed upon the Due Process Clause of the Fourteenth Amendment.

The case escalated through the legal system, ultimately reaching the United States Supreme Court for final adjudication.

Procedural Posture and History

  1. Gitlow was indicted and convicted in the Supreme Court of New York.
  2. The judgment was affirmed by both the Appellate Division and the Court of Appeals of New York.
  3. Gitlow appealed to the United States Supreme Court, which granted certiorari to review the case.

I.R.A.C. Format


Whether the New York statute, prohibiting the advocacy of governmental overthrow by force or violence, violates the Due Process Clause of the Fourteenth Amendment.

Rule of Law

Freedom of speech and press, protected by the First Amendment from abridgment by Congress, is among the fundamental personal rights and liberties protected from impairment by the States under the Due Process Clause of the Fourteenth Amendment.

Reasoning and Analysis

The Court determined that states have the right to penalize speech that presents a danger to public peace and security. While freedom of speech is fundamental, it is not absolute and can be limited in circumstances where its exercise is detrimental to societal welfare. The New York statute was aimed specifically at advocacy that implied urging to action, not merely abstract doctrine.

The Court found that Gitlow’s manifesto went beyond mere theoretical discussions, directly inciting mass action to overthrow governmental structures. Consequently, the statute’s application in Gitlow’s case was deemed a constitutional exercise of the state’s police power to protect public welfare.


The Supreme Court affirmed the judgment of the Court of Appeals, upholding Gitlow’s conviction and the constitutionality of the New York statute.

Dissenting Opinions

Justices Holmes and Brandeis dissented, expressing their opinion that Gitlow’s conviction should be reversed, indicating a belief in a more expansive protection of free speech under the Fourteenth Amendment.

Key Takeaways

  1. The freedom of speech and press is fundamental but not absolute and can be restricted when it poses a danger to society or public welfare.
  2. States have the authority to penalize advocacy directed toward action for overthrowing government by unlawful means.
  3. The due process clause of the Fourteenth Amendment protects freedom of speech from impairment by states, but this protection is subject to reasonable limitations in the interest of public safety and order.

Relevant FAQs of this case

What are the limitations of free speech when it potentially endangers public safety?

The limitations of free speech arise when the speech is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. Free speech does not protect actions that threaten public safety, such as yelling ‘fire’ in a crowded theater when there is no fire.

  • For example: A person encouraging a violent mob to attack a building may not invoke free speech as a defense against criminal charges for incitement.

How does the Due Process Clause of the Fourteenth Amendment apply to state laws?

The Due Process Clause of the Fourteenth Amendment applies to state laws by incorporating fundamental rights, such as freedom of speech, and requiring that states not violate these rights without due process. States must ensure laws do not arbitrarily infringe on personal liberties.

  • For example: A state cannot pass a law that unduly censors speech without providing justification that aligns with the Constitution, as it would be deemed an unlawful restriction on speech.

When can a state constitutionally restrict advocacy for action?

A state can constitutionally restrict advocacy for action when such advocacy is directed at inciting or producing imminent lawless action and is likely to result in such action. Advocacy intended to incite violence or the overthrow of government by force can be restricted.

  • For example: Distributing literature that calls for immediate violence against governmental institutions can be prohibited under this principle.


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