Gitlow's Legal Battle: Breaking The Sedition Barrier

Benjamin Gitlow was the first man to be tried and convicted under New York's Criminal Anarchy Act. This law, passed in 1902, made it a crime to print, publish, edit, issue or knowingly circulate anything that advocated for the overthrow of the government by force. Gitlow was a member of the Socialist Party of America and served in the New York State Assembly. He was convicted of criminal anarchy for publishing a Left-Wing Manifesto in The Revolutionary Age, a newspaper for which he served as business manager. The manifesto advocated for the violent overthrow of the US government.

Benjamin Gitlow was the first man tried and convicted under New York's Criminal Anarchy Act

At the time of Gitlow's arrest in November 1919, the First Amendment right to freedom of speech applied only to the federal government, and not to the states. This meant that dissidents like Gitlow received far less constitutional protection for freedom of speech than Americans have today.

Gitlow and his ideological comrades preached a version of the Marxist gospel. Their group, the Left Wing Section, boasted of a more aggressive form of revolution, including—if necessary—violence. Gitlow was both a member of the Section and its business manager. The group appointed a national council, which was tasked with producing a text capable of galvanizing people in the way that Marx's and Engel's "Communist Manifesto" had when it was published in 1848. The resulting manifesto called for "revolutionary Socialism" and "revolutionary mass action". It declared that it was "necessary to destroy the parliamentary state, deprive the bourgeoisie of political power, and function as a revolutionary dictatorship".

Gitlow was indicted by state prosecutors on November 26, 1919, and charged with three counts of violating New York's Criminal Anarchy Act:

• He "feloniously advocated, advised, and taught [...] the necessity and propriety of overthrowing and overturning organized government by force".
• He printed "The Revolutionary Age", which urged the overthrow of the government.
• He was an "evil-disposed and pernicious person [...] of most wicked and turbulent dispositions". (This third count was later withdrawn at the trial.)

Gitlow was convicted on February 5, 1920, in the Criminal Branch of the New York Supreme Court. On April 1, 1921, the Appellate Division of the New York Supreme Court (an intermediate appellate court) unanimously affirmed Gitlow's conviction.

The case then went to the U.S. Supreme Court, which upheld Gitlow's conviction by a vote of 7-2. The Court concluded that "The Left Wing Manifesto in The Revolutionary Age" was punishable under New York's Criminal Anarchy Act. However, the Court noted that the First Amendment's speech and press clauses were "among the fundamental personal rights and 'liberties' protected by the due process clause of the Fourteenth Amendment from impairment by the States".

In a dissenting opinion, Justice Oliver Wendell Holmes, joined by Justice Louis Brandeis, criticized the majority's reasoning, concluding,

> [W]hatever may be thought of the redundant discourse before us it had no chance of starting a present conflagration. 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.

On November 9, 1925, Gitlow surrendered to New York Authorities to be transported back to Sing Sing Prison to finish his sentence. However, on December 11, 1925, New York Governor Al Smith pardoned him, saying that while Gitlow had been "properly and legally convicted", he needed to consider "whether or not he has been sufficiently punished for a political crime".

Gitlow was convicted for distributing a manifesto advocating socialism in America

In 1919, Benjamin Gitlow was arrested for distributing a manifesto advocating socialism in America. He was charged with three counts of violating New York's Criminal Anarchy Act, which made it a crime to "print, publish, edit, issue or knowingly circulate" anything that advocated for the overthrow of the government by force.

At the time of Gitlow's arrest, the First Amendment right to freedom of speech only applied to the federal government and did not extend to the states. This meant that dissidents like Gitlow had limited constitutional protection for freedom of speech.

Gitlow was a member of the Left Wing Section, a group that broke away from the Socialist Party as they sought a more aggressive form of revolution, including violence if necessary. The group appointed a national council that was tasked with producing a manifesto capable of galvanizing people in a similar way to Marx and Engels' "Communist Manifesto". Gitlow was a member of this council and also served as the business manager of the group's newspaper, "The Revolutionary Age".

The manifesto called for "revolutionary Socialism" and "revolutionary mass action", declaring that it was necessary to "destroy the parliamentary state, deprive the bourgeoisie of political power, and function as a revolutionary dictatorship". It outlined a plan that began with strikes of protest, leading to revolutionary mass action for the "conquest of the power of the state".

Gitlow was indicted by state prosecutors on November 26, 1919, and charged with three counts of violating New York's Criminal Anarchy Act:

• He "feloniously advocated, advised, and taught . . . the necessity and propriety of overthrowing and overturning organized government by force".
• He printed "The Revolutionary Age", which urged the overthrow of the government.
• He was an "evil-disposed and pernicious person . . . of most wicked and turbulent dispositions" (this third count was later withdrawn).

Despite a strong defence, Gitlow was convicted on February 5, 1920, in the Criminal Branch of the New York Supreme Court. His conviction was upheld by the Appellate Division of the New York Supreme Court on April 1, 1921.

The case eventually made its way to the U.S. Supreme Court, which ruled on June 8, 1925, that while Gitlow's conviction was valid, the First Amendment's protection of free speech did apply to state governments through the due process clause of the Fourteenth Amendment. This ruling expanded free speech protections for individuals, as it established that state and federal governments must adhere to the same standards when regulating speech.

The Supreme Court's majority opinion, written by Justice Edward T. Sanford, upheld Gitlow's conviction on the basis that the government may suppress or punish speech that directly advocates the unlawful overthrow of the government. Sanford argued that the manifesto contained "the language of direct incitement" and was not "the expression of philosophical abstraction".

However, in a powerful dissent, Justice Oliver Wendell Holmes, joined by Justice Louis Brandeis, criticised the majority's reasoning. Holmes argued that there was no "clear and present danger" of an attempt to overthrow the government by force, as the views presented in the manifesto were shared by only a small minority and directed an uprising at some indefinite time in the future. He stated that "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".

Gitlow's conviction was upheld by the state appellate court

Benjamin Gitlow was the first man to be tried and convicted under New York's Criminal Anarchy Act. The law, passed in 1902 after the assassination of President William McKinley, made it a crime to "print, publish, edit, issue or knowingly circulate" anything that advocated, advised or taught "the doctrine that organized government should be overthrown by force, violence and unlawful means".

Gitlow was a member of the Left Wing Section of the Socialist Party. In November 1919, he was indicted by state prosecutors and charged with three counts of violating New York's Criminal Anarchy Act. He was accused of:

• Feloniously advocating, advising, and teaching... the necessity and propriety of overthrowing and overturning organized government by force.
• Printing "The Revolutionary Age", which urged the overthrow of the government.
• Being an "evil-disposed and pernicious person... of most wicked and turbulent dispositions". (The third count was later withdrawn at the trial.)

Gitlow's trial lasted from 22 January to 5 February 1920. Despite his defence lawyer, Clarence Darrow, making a bold three-hour summation, Gitlow was convicted and sentenced to five to ten years in prison.

On 1 April 1921, the Appellate Division of the New York Supreme Court (an intermediate appellate court) unanimously affirmed Gitlow's conviction. The court wrote:

> It behooves Americans to be on their guard... to meet and combat the movement which, if permitted to progress as contemplated, may undermine and endanger our cherished institutions of liberty and equality.

Gitlow's lawyers then appealed to the seven judges of the Court of Appeals of New York, the state's highest tribunal. This appeal was also unsuccessful, with the judges voting 5-2 against Gitlow.

The Supreme Court upheld Gitlow's conviction but expanded free speech protections

In 1919, Benjamin Gitlow, a member of the Socialist Party of America, was arrested for criminal anarchy under New York's Criminal Anarchy Law of 1902. Gitlow was the business manager of a newspaper called 'The Revolutionary Age', which published a manifesto advocating for the violent overthrow of the US government. He was convicted and sentenced to five to ten years in prison.

Gitlow's case, 'Gitlow v. New York', went all the way to the US Supreme Court, which upheld his conviction by a vote of 7-2. The Court's majority opinion, written by Justice Edward T. Sanford, concluded that New York's law did not violate the First Amendment, ruling that states could prohibit speech that advocated for the violent overthrow of the government. This ruling was based on the "'bad tendency' test", which allowed the government to suppress or punish speech that directly advocated for unlawful actions.

However, in an ironic twist, the Gitlow decision also expanded free speech protections for individuals. The Court held that the First Amendment's protection of free speech applied not just to the federal government, but also to state governments through the Fourteenth Amendment's due process clause. This meant that state governments now had to abide by the same standards as the federal government when regulating speech. This ruling marked a significant shift in the Court's approach to free speech and federalism, initiating the modern constitutional law era and placing new limits on states' powers.

In his dissenting opinion, Justice Oliver Wendell Holmes Jr., joined by Justice Louis Brandeis, disagreed with the majority's interpretation of the First Amendment. He argued that the "clear and present danger" test, which he had previously articulated in 'Schenck v. United States' (1919), should be applied instead. Holmes believed that Gitlow's speech did not present a clear and present danger, as it was directed at an uprising at some "indefinite time in the future".

Gitlow was pardoned by New York Governor Al Smith

Benjamin Gitlow was pardoned by New York Governor Al Smith on December 11, 1925, after serving more than two years at Sing Sing prison. This came after the Supreme Court upheld his conviction in the case of Gitlow v. New York, deeming that his publication of the "Left-Wing Manifesto" in The Revolutionary Age constituted a punishable act under New York's Criminal Anarchy Law.

Gitlow, a prominent American socialist politician and journalist, was initially convicted and sentenced to 5-10 years in prison for violating this law, which prohibited the encouragement of the violent overthrow of the government. The "Left-Wing Manifesto," published in July 1919, was deemed to fall under this category.

Following his release on bail in the spring of 1922, Gitlow became a full-time employee of the Communist Party of America and continued his political activism. However, in 1925, the Supreme Court upheld his conviction, and he was ordered back to Sing Sing Prison to finish his sentence. This decision marked a significant moment in the history of the First Amendment, as it established that the Fourteenth Amendment extended the First Amendment's protections of freedom of speech and freedom of the press to state governments.

Despite expecting to remain in prison, Gitlow received a full pardon from Governor Al Smith, who stated that while Gitlow had been "properly and legally convicted," he believed Gitlow had "been sufficiently punished for a political crime." This unexpected turn of events was met with celebration by Gitlow's radical friends and supporters, who greeted him at Grand Central Station upon his release.

The case of Gitlow v. New York and the subsequent pardon by Governor Al Smith highlighted the complex dynamics between freedom of speech, political activism, and the powers of state and federal governments in the early 20th century.

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