| Gitlow v. New York | |
|---|---|
 | |
| Argued April 12, 1923 Reargued November 23, 1923 Decided June 8, 1925 | |
| Full case name | Benjamin Gitlow v. People of the State of New York |
| Citations | 268 U.S. 652 (more) 45 S. Ct. 625; 69 L. Ed. 1138; 1925 U.S. LEXIS 598 |
| Case history | |
| Prior | Defendant convicted, Supreme Court of New York County, 2-5-20; affirmed, 195 A.D. 773 (N.Y. Sup. Ct. App. Div. 1921); affirmed, 136 N.E. 317 (N.Y. 1923) |
| Subsequent | None |
| Holding | |
| The Fourteenth Amendment prohibits states from infringing free speech, but the defendant was properly convicted under New York's Criminal Anarchy Law because he disseminated newspapers that advocated the violent overthrow of the government. | |
| Court membership | |
| |
| Case opinions | |
| Majority | Sanford, joined by Taft, Van Devanter, McReynolds, Sutherland, Butler, Stone |
| Dissent | Holmes, joined by Brandeis |
| Laws applied | |
| U.S. Const. amends. I, XIV; N.Y. Penal Law §§ 160, 161 | |
Gitlow v. New York, 268 U.S. 652 (1925), was a landmark decision of the United States Supreme Court holding that the Fourteenth Amendment to the United States Constitution had extended the First Amendment's provisions protecting freedom of speech and freedom of the press to apply to the governments of U.S. states. Along with Chicago, Burlington & Quincy Railroad Co. v. City of Chicago (1897), it was one of the first major cases involving the incorporation of the Bill of Rights. It was also one of a series of Supreme Court cases that defined the scope of the First Amendment's protection of free speech and established the standard to which a state or the federal government would be held when it criminalized speech or writing.
The case arose from the conviction under New York state law of Socialist politician and journalist Benjamin Gitlow for the publication of a "left-wing manifesto" in 1919. In a majority opinion joined by six other justices, Associate Justice Edward Terry Sanford upheld the conviction under the bad tendency test, writing that government may suppress or punish speech that directly advocates the unlawful overthrow of the government. Associate Justice Oliver Wendell Holmes Jr. dissented, arguing that state and federal governments should only be permitted to limit free speech under the "clear and present danger" test that he had previously laid out in Schenck v. United States (1919).
In his majority opinion, Sanford laid out the grounds for incorporation of freedom of speech and freedom of the press, holding that they were among the rights protected by the Due Process Clause of the Fourteenth Amendment. Later Supreme Court cases such as De Jonge v. Oregon (1937) would incorporate other provisions of the Bill of Rights on the same basis as Gitlow.