Supreme Court Upholds Criminal Anarchy Conviction While Expanding Due Process

The Supreme Court rules 7-2 in Gitlow v. New York to uphold Benjamin Gitlow’s conviction under New York’s Criminal Anarchy Act for publishing “The Left Wing Manifesto,” a socialist pamphlet advocating revolutionary mass action. Justice Edward Sanford’s majority opinion affirms that states may punish speech advocating the violent overthrow of government without requiring proof that such speech created imminent danger of illegal action. The decision validates the Red Scare prosecutions of radicals for their political beliefs and writings rather than any concrete illegal acts.

Despite upholding Gitlow’s conviction, the decision contains a transformative constitutional statement: that the First Amendment’s protections for freedom of speech and press are “among the fundamental personal rights and ’liberties’ protected by the due process clause of the Fourteenth Amendment from impairment by the States.” This “incorporation” of First Amendment rights against state governments, stated almost casually in dictum, will eventually enable federal courts to strike down state censorship and speech restrictions. However, Gitlow and subsequent decades demonstrate that formal constitutional rights mean little when courts defer to government claims of national security necessity.

Justices Oliver Wendell Holmes and Louis Brandeis dissent, with Holmes arguing that “every idea is an incitement” and that the proper test remains whether speech creates “a present danger of immediate evil.” Holmes famously declares: “If in the long run the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way.” The Gitlow decision permits criminal prosecution of political radicals throughout the 1920s while paradoxically establishing the doctrinal foundation for later expansion of First Amendment protections. The case exemplifies how formal rights expansion can coexist with practical rights suppression when courts defer to government characterizations of speech as dangerous.