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THE LIMITS OF FREE SPEECH

Advocating Revolution

A longtime leading member of a militant faction in the Social Democratic Party (USA), Benjamin Gitlow was a vocal public supporter of the Russian Revolution of November 1917. In June 1919 as business manager for Revolutionary Age, a publication of the Social Democrats, Gitlow approved the distribution around New York City of twelve thousand copies of an issue that featured a manifesto declaring the need for a similar violent uprising in the United States. He gave his assent with the full knowledge that this piece violated the provisions of a sedition act passed by the New York General Assembly in 1916. Gitlow and several other people were subsequently arrested, but state prosecutors decided to try him individually, charging that he had promoted "criminal anarchy" within the state boundaries of New York, even publicly "hawking" copies of the journal in Herald Square, Manhattan.

The Trial

During Gitlow's trial in February 1920 his defense attorney, Fred Moore, argued that the state sedition law was unconstitutional because it violated the First Amendment guarantee of free speech. Further-more, Moore claimed the statute had denied Gitlow "due legal process," as assured by the Fourteenth Amendment. Gitlow was found guilty, sentenced to two years in prison, and fined $5,000.

Appeal to the Supreme Court

Gitlow's lawyers began an appeal process that eventually reached the U.S. Supreme Court in November 1922, and on 8 June 1923 that court finally rendered its decision. The majority opinion was presented by Justice Edward T. Sanford, who declared that New York State officials had the discretionary power to punish any public remark or writing "inimical to public welfare and morals." Moreover, an "explicit danger" need not exist, because such statements could create the groundwork for future trouble. In a sharp dissent Oliver Wendell Holmes Jr. countered, "Every idea is an inducement to someone," and he pointed to various historical examples in which "eloquence set fire to reason." Holmes believed that Gitlow's ideas reflected only a minority viewpoint with little chance for longterm success. Gitlow served less than a year of his sentence before being granted a pardon by Gov. Alfred E. Smith. By 1925 Gitlow was a prominent Communist, and he remained active in that movement until the 1950s.