The right to criticize the government and to argue for a change is an essential aspect of the First Amendment’s freedom of speech. This freedom is not unlimited, however. In Schenck v. United States, 249 U.S. 47 (1919), Justice Holmes said there is a boundary between allowable speech and prohibited speech. That is, there are certain substantive evils that the government has the right to prevent, and the government can criminalize words that create a ‘‘clear and present danger’’ of bringing about that evil.
A range of unrests marked the early years of the twentieth century. The labor union movement, the rise of anarchist and socialist political groups, the antiwar movement during World War I, and the Russian Revolution, with its accompanying development of Bolshevik and Communist Parties led to the enactment of anti-anarchy and anti-anarchy-and-anti-syndicalism-statutes.html">antisyndicalism acts. The usual definition of ‘‘criminal anarchism’’ was the advocacy of the overthrow of the government by violent or unlawful means.
Bernard Gitlow had served in the New York state legislature in 1918 as a member of the Socialist Party. In 1919, Gitlow split from the Socialist Party because he was dissatisfied with the socialist approach to change and joined what became the Communist Party. Gitlow soon became business manager of The Revolutionary Age, the Communist Party’s official publication, which published a copy of the Communist Manifesto. The Manifesto explained the reason for this split: ‘‘Moderate socialism’’ advocated social change by peaceful, parliamentary means—the ballot box. This will not work, said the Manifesto. ‘‘Revolutionary socialism,’’ or Communism, ‘‘insists that the democratic parliamentary state can never be the basis for the introduction of socialism; it is necessary to destroy the parliamentary state,’’ by violence and unlawful means, as was recently demonstrated by the Communist Revolution in Russia.
Gitlow was arrested in November 1919 and accused of violating New York’s criminal anarchy statute, which prohibited a number of acts, including publication of a document ‘‘containing or advocating, advising or teaching the doctrine that organized government should be overthrown by force, violence or any unlawful means’’ (N.Y. Penal Law sec. 161). Gitlow was convicted and sentenced to a term of five to ten years. He appealed, challenging the statute’s constitutionality.
In a seven-to-two decision, the Supreme Court upheld the constitutionality of the statute, relying on ‘‘the principle that the state is primarily the judge of regulations required in the interest of public safety and welfare’’ and that a statute should be declared unconstitutional only when it is arbitrary or unreasonable:
A single revolutionary spark may kindle a fire that, smoldering for a time, may burst into a sweeping and destructive conflagration. It cannot be said that the state is acting arbitrarily or unreasonably when . . . to protect the public peace and safety, it seeks to extinguish the spark without waiting until it has enkindled the flame or blazed into the conflagration.
Justices Holmes and Brandeis dissented. Justice Holmes argued that the proper test was the rule in Schenck—that the state could prohibit speech only if that speech presented a ‘‘clear and present danger’’ to the state’s continued existence. Publication of the Communist Manifesto presented ‘‘no present danger of an attempt to overthrow the government by force on the part of the admittedly small minority who shared the defendant’s views.’’
Six months later, New York Governor Al Smith commuted Gitlow’s sentence. Smith said Gitlow’s conviction was proper, noting that while the Supreme Court had upheld the constitutionality of the statute, two and a half years in prison was sufficient punishment for ‘‘a political crime.’’ In addition, the governor said he agreed with the reasoning in the Holmes dissent.
Gitlow immediately returned to his prominent position in the Communist Party. He later split with the party and even became an active anticommunist, testifying against the party before the House Un-American Activities Committee. He died in 1965.
Although the Supreme Court upheld Gitlow’s conviction, the clear-and-present-danger test became the standard by which most free speech cases have been decided ever since. The language in the dissent, that Gitlow’s group was too small to be a threat to the government, was distinguished in the 1951 case of Dennis v. United States, 341 U.S. 494 (1951), when the cold war made the strength of the Communist Party seem more worrisome.
A second interesting aspect of the decision is that it is one of the first in which the Supreme Court incorporated a First Amendment guarantee into the Fourteenth Amendment. Almost as an aside, the Court said, ‘‘we . . . assume that freedom of speech and of the press . . . are among the fundamental personal rights and ‘liberties’ . . . protected by the due process clause of the Fourteenth Amendment.’’
ELI C. BORTMAN
Cases and Statutes Cited
See also Anti-Anarchy and anti-anarchy-and-anti-syndicalism-statutes.html">Anti-Syndicalism Statutes; Application of First Amendment to States; Clear and Present Danger Test; Communist Party; House Un- American Activities Committee