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

  • Gitlow (a Socialist!) published a manifesto that called for general strikes and other actions in the support of Socialism.
  • He was arrested for the crime of “Criminal Anarchy.”
    • “Criminal Anarchy” was a crime under New York law that made it illegal to advocate the overthrow of government by force or violence.
  • Gitlow was convicted of criminal anarchy. He appealed.
    • Gitlow argued that the New York law was a violation of his 1st Amendment right to free speech.
  • The US Supreme Court upheld the conviction.
    • The US Supreme Court found that the 1st Amendment was incorporated into the States via the 14th Amendment.
      • They hadn’t actually said that before this case.
    • The Court looked to Court looked to Schenck v. United States (249 U.S. 47 (1919)) and Frowerk v. United States (249 U.S. 204 (1919)) which found there was a clear and present danger exception to freedom of speech.
    • However, the Court rejected the clear and present danger standard in favor or a reasonableness approach.
      • The reasonableness approach basically says that a law limiting free speech is still constitutional as long as it is ‘reasonable.’
        • Also known as the dangerous tendency test.
      • That’s a more inclusive standard than clear and present danger. The reasonableness approach will find laws constitutional even if they forbid speech that isn’t a direct, imminent danger.
    • In this case, the Court found that the New York law was reasonable, and therefore met constitutional scrutiny.
  • Basically, this case said that laws limiting free speech can be constitutional as long as they are not arbitrary and unreasonable exercises of a States’ police power.