Gitlow V. New York - Free Speech

Free Speech

The Court upheld Gitlow's conviction on the basis that the government may suppress or punish speech that directly advocates the unlawful overthrow of the government and it upheld the constitutionality the state statute at issue, which made it a crime to advocate the duty, need, or appropriateness of overthrowing government by force or violence.

Justice Edward Terry Sanford's majority opinion attempted to define more clearly the "clear and present danger" test developed a few years earlier in Schenck v. United States, 249 U.S. 47 (1919). He embraced "the bad tendency test" found in Abrams v. United States, 250 U.S. 616 (1919), which held that a "State may punish utterances endangering the foundations of government and threatening its overthrow by unlawful means" because such speech clearly "present a sufficient danger to the public peace and to the security of the State." According to Sanford, "a single revolutionary spark may kindle a fire that, smoldering for a time, may burst into a sweeping and destructive conflagration." He said the Manifesto contained "the language of direct incitement" and was not "the expression of philosophical abstraction."

In his dissent, Holmes, the author of Schenck's clear and present danger test, wrote that he believed it was still the appropriate test to employ in judging the limits of freedom of expression. Joined by Brandeis, he argued that Gitlow presented no present danger because only a small minority of people shared the views presented in the manifesto and because it directed an uprising at some "indefinite time in the future." He responded to Sanford's kindling metaphor that "eloquence may set fire to reason, but, whatever my be thought of the redundant discourse before us, it had no chance of starting a present conflagration."