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Gitlow v. New York

Gitlow v. New York, 268 U.S. 652 (1925)

Issue: Could the First Amendment be nationalized?

Facts: Benjamin Gitlow was accused of violating New York’s criminal anarchy law. Under that statute, criminal anarchy was defined as promoting the doctrine that organized government should be overthrown by force or violence, or that executive heads of government should be assassinated. Gitlow was convicted under that New York statute, and the U.S. Supreme Court ruled that the New York jury was justified in finding Gitlow guilty under the criminal anarchy statute.

Decision: Gitlow was guilty, but in a side comment Justice Edward Terry Sanford wrote for a seven-man majority of the Court:22

[W]e may and do assume that freedom of speech and of the press—which are protected by the First Amendment from abridgment by Congress—are among the fundamental rights and “liberties” protected by the Fourteenth Amendment from impairment by Congress.

Reasons: Sanford and his six brethren believed that Gitlow’s words were so dangerous to established order that his conviction must be upheld. Justices Oliver Wendell Holmes and Louis D. Brandeis dissented, arguing that the “Manifesto” posed little threat to harm society. But Justice Sanford’s reasoning that the First Amendment was applicable to states though the Fourteenth Amendment was crucial in development of First Amendment interpretation. The Fourteenth Amendment to the Constitution was adopted in 1868 to try to protect a newly freed former slave population from Southern states. Section 1 of the Fourteenth Amendment says:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the State wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law, nor deny any person within its jurisdiction the equal protection of the laws.

This approach helped nationalize the First Amendment, making possible the first two landmark decisions listed above, Near v. Minnesota (1931) on prior restraint and New York Times v. Sullivan (1964) on libel.


22 Gitlow v.New York, 268 U.S. 252, 272 (1925).