People v. Gitlow

• Decision Date: 12 July 1922
• Citation: 234 N.Y. 132,136 N.E. 317
• Parties: PEOPLE v. GITLOW.
• Court: New York Court of Appeals Court of Appeals

234 N.Y. 132

136 N.E. 317

PEOPLE

v.GITLOW. ^*

Court of Appeals of New York.

July 12, 1922.

Benjamin Gitlow was convicted of criminal anarchy, and from a judgment of the Appellate Division (195 App. Div. 773,187 N. Y. Supp. 783), unanimously affirming a judgment entered on a verdict of a jury, he appeals.

Affirmed.

Pound and Cardozo, JJ., dissenting.Appeal from Supreme Court, Appellate Division, First Department.

Walter Nelles and Joseph R. Brodsky, both of New York City (I. E. Ferguson, of Chicago, Ill., of counsel), for appellant.

Joab H. Banton, Dist. Atty., of New York City (John Caldwell Myers, of New York City, of counsel), for the People.

CRANE, J.

James Larkin, Benjamin Gitlow, C. E. Ruttenberg, and Isaac E. Ferguson were indicted, tried, and convicted for the crime of criminal anarchy as defined by sections 160 and 161 of the Penal Law (Consol. Laws, c. 40). So far as applicable to this case the sections read as follows:

‘Sec. 160. Criminal Anarchy Defined. Criminal anarchy is the doctrine that organized government should be overthrown by force or violence, or by assassination of the executive head or of any of the executive officials of government, or by any unlawful means. The advocacy of such doctrine either by word of mouth or writing is a felony.

‘Sec. 161. Advocacy of Criminal Anarchy. Any person who:

‘1. By word of mouth or writing advocates, advises or teaches the duty, necessity or propriety of overthrowing or overturning organized government by force or violence, or by assassination of the executive head or of any of the executive officials of government, or by any unlawful means; or,

‘2. Prints, publishes, edits, issus or knowingly circulates, sells, distributes or publicly displays any book, paper, document, or written or printed matter in any form, containing or advocating, advising or teaching the doctrine that organized government should be overthrown by force, violence or any unlawful means; * * *

‘Is guilty of a felony and punishable by imprisonment for not more than ten years, or by a fine of not more than five thousand dollars, or both.’

The offense charged against these defendants, of which they have been convicted, is that they advised and advocated, in a Socialist paper known as the Revolutionary Age, the overthrow and destruction of this government by revolution, violence, and the mass strike.

[1][2] This court, I think, is agreed that these provisions of the Penal Law are constitutional. The First Amendment to the United States Constitution and section 8 of article 1 of the New York state Constitution, which secure the freedom and liberty of speech and of the press, do not protect the violation of this liberty, or permit attempts to destroy that freedom which the Constitutions have established. We said in People v. Most, 171 N. Y. 423, 431,64 N. E. 175, 178 (58 L. R. A. 509):

‘While the right to publish is thus sanctioned and secured, the abuse of that right is excepted from the protection of the Constitution, and authority to provide for and punish such abuse is left to the Legislature. The punishment of those who publish articles which tend to corrupt morals, induce crime or destroy organized society, is essential to the security of freedom and the stability of the state. While all the agencies of government, executive, legislative and judicial, cannot abridge the freedom of the press, the Legislature may control and the courts may punish the licentiousness of the press. * * * Mr. Justice Story defined the phrase to mean ‘that every man shall have a right to speak, write and print his opinions upon any subject whatsoever, without any prior restraint, so always, that he does not injure any other person in his rights, person, property or reputation; and so always, that he does not thereby disturb the public peace, or attempt to subvert the government.’ Story's Commentaries on the Constitution, § 1874. * * * It places no restraint upon the power of the Legislature to punish the publication of matter which is injurious to society according to the standard of the common law. It does not deprive the state of the primary right of self preservation. It does not sanction unbridled license, nor authorize the publication of articles prompting the commission of murder or the overthrow of government by force. All courts and commentators contrast the liberty of the press with its licentiousness, and condemn as not sanctioned by the constitution of any state, appeals designed to destroy the reputation of the citizen, the peace of society or the existence of the government.'

To the same point, reference may be made to Patterson v. Colorado, 205 U. S. 454, 462, 27 Sup. Ct. 556, 51 L. Ed. 879, 10 Ann. Cas. 689;Schenck v. United States, 249 U. S. 47, 39 Sup. Ct. 247, 63 L. Ed. 470;State v. Fox, 71 Wash. 185, 127 Pac. 1111;State v. Boyd, 86 N. J. Law, 75, 79, 91 Atl. 586.

These sections of the Penal Law make the publication of a paper or document, advocating and advising that organized government be overthrown by force, violence, or any unlawful means, a felony. The Constitution, federal or state, does not authorize publications which advocate the assassination of public officials. People v. Most, supra. Neither does it authorize publications advocating the destruction of the government by violence or unlawful means. The Legislature of this state, therefore, was within its powers when it enacted sections 160 and 161 of the Penal Law.

[3] It is fair to assume that the Legislature had in mind the protection of this state, the states of the Union and of the Union itself. We may fairly assume that the Legislature would think of self-preservation rather than the protection of foreign governments. When, therefore, in these sections it used the words ‘organized government,’ it must have referred to all organized government in this country, whether it be that of the city, state, or nation. To advocate the destruction of the government of the city of New York, or of the state of New York, or of the United States, by force or by unlawful means, such as the mass strike, is a violation of these sections of the Penal Law.

As I understand it, the majority of this court are agreed, first, upon the constitutionality of these sections of the Penal Law; second, that the sections apply to writings which advocate the destruction of organized government as it exists in this country; third, that the Revolutionary Age, published by the defendant Gitlow, was a violation of this law, in that it advocated the overthrow of this government by violence, or by unlawful means.

[4] A word, now, as to this Revolutionary Age. What does it advocate? Let it speak for itself. I quote from the original publication, which the defendant Gitlow had printed, for which he paid, which circulated to the extent of 6,000 copies, and for which, on the trial, he accepted full responsibility. The Left Wing of the Socialist Party broke away from the main body of Socialists, because, the latter desired to bring about the changes in government by parliamentary methods, too moderate, indeed, for the Left Wing. The Left Wing desired to bring about the social state by revolution, overthrow, violence, and so, in this Revolutionary Age, published this manifesto:

‘The world is in a crisis. Capitalism, the prevailing system of society, is in the process of disintegration and collapse. Out of its vitals is developing a new social order, the system of Communist Socialism; and the struggle between this new social order and the old is now the fundamental problem of international politics. * * * The forces of production revolt against the fetters Capitalism imposes upon production. The answer of Capitalism is war; the answer of the proletariat is the Social Revolution and socialism. * * * The class struggle is the heart of Socialism. * * * But the dominant Socialism accepted the war as a war for democracy-as if democracy under the conditions of Imperialism is not directly counter-revolutionary! It justified the war as a war for national independence-as if Imperialism is not necessarily determined upon annihilating the independence of nations! * * * The dominant Socialism expressed this unity, developing a policy of legislative reforms and State Capitalism, making the revolutionary class struggle a parliamentary process. This development meant, obviously, the abandonment of fundamental Socialism. It meant working on the basis of the bourgeois parliamentary state, instead of the struggle to destroy that state. * * * The proletariat was urged not to make a revolution. The dominant Socialism united with the capitalist governments to prevent a revolution. The Russian Revolution was the first act of the proletariat against the war and Imperialism. * * * But the proletariat, urging on the poorer peasantry, conquered power. It accomplished a proletarian revolution by means of the Bolshevik policy of ‘all powr to the Soviets.’ * * * Revolutionary socialism, on the contrary, insists that the democratic parliamentary state can never be the basis for the introduction of Socialism; that it is necessary to destroy the parliamentary state, and construct a new state of the organized producers, which will deprive the bourgeoisie of political power, and function as a revolutionary dictatorship of the proletariat. * * * Revoluntionary Socialism alone is capable of mobilizing the proletariat for Socialism, for the conquest of the power of the state, by means of revolutionary mass action and proletarian dictatorship. * * * Revolutionary industrial unionism was a recognition * * * that the political state should be destroyed and a new proletarian state of the organized producers constructed in order to realize Socialism. * * * This is not the moment of revolution, but it is the moment of revolutionary struggle. * * * Strikes are developing which verge on revolutionary action, and in which the suggestion of proletarian dictatorship is apparent, the...