A few reflections on the Benjamin Gitlow story as that landmark case nears its centennial anniversary — First Amendment News 436

Next June marks the centennial of Gitlow v. New York (1925). On November 2, the Beus Center for Law and Society will host a conference, replete with noted scholars on Gitlow. The venue is home to the Sandra Day O’Connor College of Law. Mindful of that upcoming event and next year’s anniversary, below are a few reflections on Benjamin Gitlow (a rather odd soul) and his case. Professor Robert Post has written an informative article about the man and his case, the abstract of which follows Gitlow’s story. — RKLC

His is a story about an odd man with both bad luck and good luck — a man who made it into the pages of First Amendment history. In so many ways, however, it is a complicated story with more than one unpredictable ending. Along the way, some remarkable lawyers and judges got involved so that the name Benjamin Gitlow would go down in legal history. His story is a vital part of the history of the First Amendment, a history that Gitlow v. New York helped to shape.

Ben Gitlow was the first man to be tried and convicted under New York’s Criminal Anarchy Act. Passed in 1902 after the assassination of President William McKinley in Buffalo, the act 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.” 

At the time of Gitlow’s arrest in November 1919, the First Amendment right to freedom of speech applied to the federal government, and not to the states. As a result, dissidents like Gitlow received far less constitutional protection for freedom of speech than Americans have come to expect today. By 1920, 35 of the 48 states had passed “anti-revolution” laws, which forbade people from publicly calling for violent revolution in the United States. At the time, all of these state laws were beyond the reach of the First Amendment, which meant the only express constitutional protection for free speech had to come from the state constitutions.

The ‘Left Wing’ brigade 

Gitlow and his ideological comrades preached their version of the Marxist gospel. Not long after the infamous Palmer raids, Gitlow and others broke ideological ranks with the Socialist Party. It was too timid for their revolutionary tastes. Their new group, tagged the Left Wing Section, rhetorically boasted of a more aggressive form of revolution, including — if necessary — violence.

The Left Wing Section appointed a national council and charged it to produce a text capable of galvanizing people the way Marx’s and Engel’s “Communist Manifesto” had when it was published in 1848. During this time, Gitlow was both a member of the Section and its business manager. It took a summer of feverish work to hammer out the manifesto. When done, it called for “revolutionary Socialism” and “revolutionary mass action.” True to its provocative title, the otherwise boring document declared “it is necessary to destroy the parliamentary state, deprive the bourgeoisie of political power, and function as a revolutionary dictatorship.” The proposed means to that revolutionary end: “The revolution starts with strikes of protest, and then into revolutionary mass action for the conquest of the power of the state.” 

Such words made Gitlow criminally vulnerable. Not surprisingly, he was indicted by state prosecutors on Nov. 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.) 

Three noted lawyers come to Gitlow’s defense

Given that, Ben Gitlow (the pudgy round-faced radical) was in big trouble and he needed a big-time lawyer to defend him. He found just such counsel in three lawyers. Charles Recht and Walter Nelles, a pair of seasoned lawyers from the National Civil Liberties Bureau, conducted the lion’s share of the trial. But for the jury argument portion, an even more accomplished criminal defense lawyer was recruited — someone who would argue for the defense in more than two thousand cases during his career. That lawyer was Clarence Darrow. The great defender of the underdog and staunch opponent of capital punishment, Darrow was the man who famously debated William Jennings Bryan in the 1925 Scopes trial involving the teaching of evolution. He was so dedicated to free speech issues that he accepted Gitlow as a client even before the two had personally met. 

Grudgingly, Darrow allowed Gitlow to address the jury on his own behalf. “I suppose a revolutionist must have his say in court even if it kills him,” the compassionate yet cynical lawyer remarked. 

Faithful to Darrow’s prediction, Gitlow, who spoke for nearly an hour — sometimes in rambling fashion — told the court: “In the eyes of the present-day society I am a revolutionist” and proud of it. Frequently, Gitlow bickered as he exchanged barbs with an impatient judge by the name of Bartow S. Weeks.

The self-righteous defendant refused to sacrifice his opinion for his liberty. “I am not going to evade the issue,” he told the jury, and then added: “My whole life has been dedicated to the movement in which I am in. No jails will change my opinion in that respect. I ask no clemency.”

Despite Darrow’s bold three-hour summation, Gitlow was convicted on Feb. 5, 1920, in the Criminal Branch of the New York Supreme Court (see also here). On April 1, 1921, the Appellate Division of the New York Supreme Court (an intermediate appellate court) unanimously affirmed Gitlow’s conviction. 

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

The state high court ruling with Cardozo in dissent

A year after his first failed appeal, he received his first good news: After 26 consecutive months in a cell, he was to be released pending his next appeal. Gitlow’s good fortune was the handiwork of Benjamin N. Cardozo, then a member of New York’s high court.

Gitlow’s lead New York appellate attorney, Walter Nelles, prepared his next state-court appeal, this time to the seven judges of the Court of Appeals of New York, the state’s highest tribunal. It would be Gitlow’s last chance to have his First Amendment rights vindicated, short of the highly unlikely intervention of the United States Supreme Court. But without some new legal angle, Nelles’ prospects for victory were bleak. Absent a different interpretation of the state statute or some new constitutional defense, Gitlow would remain a resident of Sing Sing.

Predictably, the appeals court was disinclined to render novel rulings on behalf of Communist agitators. On July 12, 1922, the judges voted 5-2 against Gitlow.

Judge Cuthbert W. Pound, joined by Judge Cardozo, saw it differently in his dissent. For Pound, New York’s criminal statute was not violated because Gitlow had not actually advocated violent anarchy. As Pound put it: “Although the defendant may be the worst of men; although Left Wing socialism is a menace to organized government; the rights of the best of men are secure only as the rights of the vilest and most abhorrent are protected.”

The Supreme Court considers the case

As the case went up to the Supreme Court, Gitlow’s legal team added yet another notable legal mind to the roster of his defense counsel. The man was Walter Helprin Pollak, a bright, Harvard-educated lawyer, then 35 years old. In later years he would become one of the most celebrated civil liberties appellate lawyers in the land. For now, he had to deal with a formidable challenge to his somewhat novel argument that the First Amendment protected Gitlow from prosecution under the New York Criminal Anarchy law. In other words, he had to argue that the First Amendment, its text notwithstanding, applied to the states.

Gitlow v. New York came before the nine justices of the Supreme Court on April 12, 1923, and was reargued on Nov. 23. Nearly 18 months later, the Supreme Court upheld his conviction by a vote of 7-2. Per Justice Sanford, the Court concluded that the “Left Wing Manifesto in The Revolutionary Age” was punishable under New York’s Criminal Anarchy Act. Even so, 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.” Holmes, joined by Brandeis, dissented on the merits of the First Amendment claim. Thereafter, Gitlow prepared to return to Sing Sing.

A truly surprising twist

Six months after the Court’s decision, on his first wedding anniversary, Ben Gitlow had resigned himself to accepting his status as a ward of Sing Sing. It was Friday, Dec. 11, 1925, when the dark and curly-haired prisoner ventured to the visiting room to see his wife, Badonna Zeitlin. Together, they struggled with the real likelihood of him remaining in prison for years. About that time, a guard approached Badonna. She had a phone call. 

“Wouldn’t it be funny if the call is on the matter of your pardon?” she quipped. 

Governor Al Smith, who had returned to the governor’s mansion after his 1920 defeat, had recently pardoned one of Gitlow’s fellow dissidents. Might the governor now be willing to do the same for Gitlow? That was too good to be true — it was fanciful revolutionary thinking. But when Badonna returned from the warden’s office, she could barely contain her enthusiasm. 

“Don’t be surprised if you will lose one of your steady guests soon,” she said rather snidely to the guard. “I just got word that the Governor pardoned my husband.”

The next day, after accepting a cheap suit of clothes from the state and a gift of ten dollars, Benjamin Gitlow left Sing Sing for good. As he watched Gitlow pull his brown cap down over his eyes and board a train for Grand Central Station, warden Lewis Lawes may well have wondered if this unusual prisoner had finally learned his lesson. Was he a man for whom “bad associations” would no longer be a problem? 

An hour later, a group of 25 energized radical friends met Gitlow at Grand Central Station. Befitting the occasion, the general secretary of the Workers Party made a promise to a gathering of the press: Despite his hardships, Benjamin Gitlow “would continue to carry forward the fight for which he was imprisoned . . . [for] the struggles with the employing class and for the defense of every right of the workers to organize, to speak, to strike and to picket.” 

The plot twists yet again

It’s hard to comprehend what followed next. After all, who would believe that a man who sacrificed so much for the principles of freedom would later deny those same freedoms to others? Yet that’s exactly what happened. Ben Gitlow — the man who twice ran (unsuccessfully) as a socialist for vice president of the United States by promising he would turn the White House into apartments for poor farmers — turned on his comrades and became a government informant.

In 1929, thanks to Joseph Stalin (whom he had once met), Gitlow was expelled from the Communist Party. Infuriated and feeling betrayed, Gitlow and others organized the Communist Party, U.S.A. Meanwhile, the 39-year-old radical became a man without an ideological anchor. He drifted. 

By the late 1930’s and into the 1950s, he opposed those he once embraced by testifying (sometimes as a paid government informant) before the House Un-American Activities Committee, the Subversive Activities Control Board, and similar government commissions. Among others, he testified against Harry Bridges (a noted longshoreman leader) and Stephen S. Wise (a revered American rabbi). 

“Mr. Gitlow was a favorite witness of the House Un-American Activities Committee, but his testimony became suspect in many quarters in 1953 when he said that ‘in the infiltration of the Methodist Church, the Communists were highly successful.’” That same Washington Post story added: “He and other defectors related that 600 clergymen in the country were secret Reds.” 

Even so, FBI Director J. Edgar Hoover praised Gitlow “for his anticommunist work and offering to meet with him in Washington to help him ferret out subversives.” 

Gitlow’s critics — aging socialists and young progressives — denounced him as a vengeful man bent on destroying the world he was forced to leave behind. Gitlow said he turned against Communism because of its “enslavement of the human mind.” If true, Gitlow came to that truth in the rough-and-tumble of ideas he first defended and then divorced. That process — of talking, debating, publishing, protesting, and thereafter reconsidering it all — represents one of the cornerstones of the First Amendment. 

If Benjamin Gitlow had reflected long enough on that fact before he died on July 19, 1965, perhaps he would have realized that freedom changes minds: Suppression changes nothing. 

Adapted from Ronald Collins and Sam Chaltain, “We Must Not Be Afraid to Be Free: Stories of Free Expression in America,” (Oxford University Press, 2011), pp. 17-38.

Related

Max Eastman also wrote the foreword to Benjamin Gitlow’s autobiography, “I Confess: The Truth about American Communism.” (1940)

Enter professor Post and his new article on Gitlow

• Robert Post, “The Enigma of Gitlow: Positivism, Liberty, Democracy, and Freedom of Speech,” Yale Law School, Public Law Research Paper (Aug. 7)

Gitlow v. New York held that courts should defer to state legislatures seeking to punish the mere advocacy of revolution. Although this holding was decisively repudiated forty years later in Brandenburg v. Ohio, Gitlow is nevertheless honored today because it was the first case to include freedom of speech in the “liberty” interests protected by the Due Process Clause of the Fourteenth Amendment.

Closely examined, Gitlow is a very puzzling decision. Why did the Court bother to include freedom of speech within the ambit of Fourteenth Amendment liberty if its substantive understanding of First Amendment rights was so weak and deferential? Conversely, why did Holmes and Brandeis, who dissented in Gitlow, agree that the “liberty” interests protected by the Due Process Clause should be expanded to include freedom of speech, given that they had heretofore vigorously opposed using the Clause to restrict state legislation? In celebration of Gitlow’s upcoming centennial, this article offers a comprehensive historical reconstruction of its circumstances and decision-making. It seeks to unpack the enigmas that envelop the opinion. 

The article argues that the majority of the Court chose to expand the scope of the Fourteenth Amendment Due Process Clause to fulfill the promise of Allgeyer v. Louisiana to offer judicial protection to “the right of the citizen to be free in the enjoyment of all his faculties.” The Taft Court was vigorously engaged in the project of reviving Lochner and its elevated judicial scrutiny of social and economic regulation. Strangely, however, the Taft Court in Gitlow counseled strict judicial restraint, which strongly suggests that it cared more about expanding the scope of Fourteenth Amendment “liberty” than about the substantive value of freedom of speech.

Holmes was notably reluctant to expand the scope of Fourteenth Amendment liberty, even to protect freedom of speech. The article argues that he changed his mind after 1923 when he came to realize that judicial deference to legislation could be justified only on the assumption that legislatures actually registered “the actual equilibrium of force in the community.” This was not for Holmes a matter of democratic legitimacy, but of the ability of positive law to maintain the authority to serve as an alternative to outright violence. For Holmes, the value of free speech lay less in its connection to “truth” than in its ability to underwrite the judicial positivism that he invented and bequeathed to subsequent generations.

Brandeis did not write separately in Gitlow, but he developed at that time an account of free speech that differed fundamentally from that of Holmes. For Brandeis, the “final end” of the state “was to make men free to develop their faculties.” Brandeis believed that the perfection and expression of individual autonomy were essential to human flourishing, that society owed to all persons the conditions that would allow for such flourishing, and that democracy was the only form of government consistent with such flourishing. He therefore interpreted the Constitution, including the Constitution’s protection for freedom of speech, to protect the practices necessary for democracy. The difference between Holmes and Brandeis can plainly be seen in Meyer v. Nebraska, which struck down restrictions on the teaching of foreign language. Holmes dissented in Meyer, but Brandeis, who regarded education as necessary for democracy, joined the Court’s opinion by James McReynolds.

Contemporary First Amendment doctrine descends from Brandeis, not from Holmes. But modern representatives of Holmesian positivism, who believe that the law inheres only in facts—whether facts of original public meaning, or of history and tradition, or of past practices—have recently sought to revise First Amendment doctrine to abjure judicial appeals to the “purpose” of protecting essential democratic processes. The recent case of Vidal v. Elster is a good example.

Gitlow offers an important lesson for these modern scholars and judges: It illustrates that the great progenitor of American positivism, Oliver Wendell Holmes, Jr., understood full well that positive law itself requires justification. Not even Holmes, the most rigorous practitioner of positivism in the history of American jurisprudence, was prepared to interpret the Fourteenth Amendment Due Process Clause merely in the light of simple facts, whether those of text, or of history, or of traditional legal practices. Holmes instead interpreted the Clause to advance the larger values he perceived at stake in American constitutionalism.

Related

• Robert C. Post, “The Taft Court Two Volume Hardback Set: Volume 10: Making Law for a Divided Nation, 1921–1930 (Oliver Wendell Holmes Devise History of the Supreme Court of the United States),” Cambridge University Press (2024)

Forthcoming book on theater censorship

• Anne Etienne and Graham Saunders, eds., “The Palgrave Handbook of Theatre Censorship” (Palgrave, Nov. 15)

This book incorporates a wide theoretical, cultural, literary and historical engagement in exploring the tension between dramatic productions and the forms of censorship they encounter from creation to reception. The Palgrave Handbook of Theatre Censorship offers global new insights into censorship practices, examining attempts at repression motivated either by fears that audiences gathering together to watch live dramatic events will lead to sedition and mass uprisings, or by moral or religious squeamishness requiring the establishment of institutional systems of censorship to curb or suppress the stage. As such, the Handbook aims to initiate redefinitions of what we understand or experience as censorship.

Who knew theatre could (still) carry so many threats, or be so widely provocative and dangerous? This is an extraordinary and often eye-opening set of thirty-six individually insightful, wide-ranging and oftentimes disturbing essays, each of which offers unique insights into theatre censorship practices and their impact within a specific political and moral culture. There is a particular emphasis on the recent and current, and the authors speak with first-hand knowledge and from direct experience not only about the restrictions but also how artists sometimes negotiate and evade these. What makes the book so especially fascinating and illuminating is seeing so many examples juxtaposed together. This enables the reader to hear the essays and the cultures talking to and alongside each other. The collection repeatedly breaks fresh ground, and the editors deserve enormous credit for gathering and effectively curating so many reports from the front line.

Forthcoming book for children on banned books

• National Coalition Against Censorship, “A Kids Book About Banned Books,” DK Children (Forthcoming, Jan. 21, 2025)

Every day in schools across the country books are challenged for telling stories, centering characters, and tackling topics that feel uncomfortable for some people. 

This book explains what book banning is and helps start a conversation about how reading and having access to new information and ideas helps us stop, think, and grow!

‘So to Speak’ podcast on John Stuart Mill

• “John Stuart Mill's lasting impact on the Supreme Court,” FIRE (Aug. 15)

How has 19th-century English philosopher John Stuart Mill influenced America's conception of free speech and the First Amendment?

In their new book, "The Supreme Court and the Philosopher: How John Stuart Mill Shaped U.S. Free Speech Protections," co-authors Eric Kasper and Troy Kozma look at how the Supreme Court has increasingly aligned its interpretation of free expression with Mill's philosophy, as articulated in “On Liberty.”

Eric Kasper is a professor of political science at the University of Wisconsin-Eau Claire, where he serves as the director of the Menard Center for Constitutional Studies.

Troy Kozma is a professor of philosophy and the academic chair at the University of Wisconsin-Eau Claire - Barron County.

View video

Follow-up regarding Levine’s response to White

Last week we posted “The uninhibited Sullivan debate continues: Lee Levine responds to G. Edward White.” As then noted, we invited professor White to reply. He declined.

More in the news

• Adam Schwartz, Mario Trujillo, and Aaron Mackey, “Court to California: Try a Privacy Law, Not Online Censorship,” EFF (Aug. 19)
• “US Colleges Revise Rules on Free Speech in Hopes of Containing Anti-War Demonstrations,” Associated Press / First Amendment Watch (Aug. 16)
• Andrew Sheeler, “California social media law likely violates the First Amendment, Ninth Circuit panel rules,” Sacramento Bee (Aug. 16)
• “TikTok Compares Itself To Foreign-Owned American News Outlets as It Fights Forced Sale or Ban,” Associated Press / First Amendment Watch (Aug. 16)
• Jay Diaz, “Trump can’t stop Politico from disclosing info allegedly stolen by hackers,” FIRE (Aug. 15)
• Ian Millhiser, “The First Amendment is in grave danger if Trump wins,” Vox (Aug. 12)
• Ramishah Maruf and Clare Duffy, “Elon Musk’s X just sued a nonprofit advertising group out of existence,” CNN Business (Aug. 9)

2023-2024 SCOTUS term: Free expression and related cases

Cases decided

• O’Connor-Ratcliff v. Garnier 
• Speech First, Inc. v. Sands (certiorari granted, judgment re the bias policy claims vacated, and case remanded to the Court of Appeals for the 4th Circuit with instructions to dismiss those claims as moot) (Thomas & Alito, dissenting)
• National Rifle Association of America v. Vullo 
• Vidal v. Elster
• Gonzalez v. Trevino (vacated and remanded, per curiam with Alito, Kavanaugh, and Jackson (joined by Sotomayor) concurring in separate opinions and Thomas dissenting)
• Murthy v Missouri (decided on Art. III standing grounds)
• Moody v. NetChoice, LLC & NetChoice, LLC v. Paxton 

Review granted

• Free Speech Coalition, Inc., et al., v. Paxton
• Vidal v. Elster (argued Nov. 1)
• O’Connor-Ratcliff v. Garnier (decided March 15, see below under “State action”)
• Moody v. NetChoice, LLC & NetChoice, LLC v. Paxton  (argued Feb. 26, 2024)
• National Rifle Association of America v. Vullo (argued March 18, 2024)
• Murthy v Missouri (argued March 18, 2024)
• Gonzalez v. Trevino (argued March 20, 2024)

Pending petitions

• Henderson v. Texas
• Murphy v. Schmitt
• Villarreal v. Alaniz 
• No on E, San Franciscans Opposing the Affordable Care Housing Production Act, et al. v. Chiu

State action

• Lindke v. Freed (Barrett, J., 9-0: “The state-action doctrine requires Lindke to show that Freed (1) had actual authority to speak on behalf of the State on a particular matter, and (2) purported to exercise that authority in the relevant posts. To the extent that this test differs from the one applied by the Sixth Circuit, we vacate its judgment and remand the case for further proceedings consistent with this opinion.”)
• O’Connor-Ratcliff v. Garnier (Per Curiam: 9-0: “We granted certiorari in this case and in Lindke v. Freed (2024), to resolve a Circuit split about how to identify state action in the context of public officials using social media. Because the approach that the Ninth Circuit applied is different from the one we have elaborated in Lindke, we vacate the judgment below and remand the case to the Ninth Circuit for further proceedings consistent with our opinion in that case.”)

Review denied

• In Re First Choice Women's Resource Centers, Inc.
• Pierre v. Attorney Grievance Commission of Maryland
• O’Handley v. Weber
• Frank v. Lee
• Mckesson v. Doe (Separate statement by Sotomayor, J.)
• Brokamp v. James
• Griffin v. HM Florida-ORL (application for stay denied)
• M. C. v. Indiana Department of Child Services
• Spectrum et al v. Wendler
• Porter v. Martinez
• Molina v. Book
• Porter v. Board of Trustees of North Carolina State University
• NetChoice, LLC v. Moody
• Alaska v. Alaska State Employees Association
• X Corp. v. Garland
• Tingley v. Ferguson (Justice Kavanaugh would grant the petition for a writ of certiorari. Justice Thomas, dissenting from the denial of certiorari (separate opinion). Justice Alito, dissenting from the denial of certiorari (separate opinion).)
• Jarrett v. Service Employees International Union Local 503, et al
• Sharpe v. Winterville Police Dept.
• Winterville Police Department v. Sharpe
• Stein v. People for the Ethical Treatment of Animals, Inc., et al.
• Blankenship v. NBCUniversal, LLC
• Center for Medical Progress v. National Abortion Federation
• Frese v. Formella
• Mazo v. Way

Free speech related

• Miller v. United States (judgment vacated, and case remanded) (statutory interpretation of 18 U.S.C. § 1512(c) advocacy, lobbying and protest in connection with congressional proceedings) 
• Fischer v. United States (vacated and remanded, 6-3 per Roberts with Barrett, Sotomayor and Kagan dissenting: To prove a violation of §1512(c)(2), the Government must establish that the defendant impaired the availability or integrity for use in an official proceeding of records, documents, objects, or other things used in an official proceeding, or attempted to do so.)

Last scheduled FAN

FAN 435: “The uninhibited Sullivan debate continues: Lee Levine responds to G. Edward White”

This article is part of First Amendment News, an editorially independent publication edited by Ronald K. L. Collins and hosted by FIRE as part of our mission to educate the public about First Amendment issues. The opinions expressed are those of the article’s author(s) and may not reflect the opinions of FIRE or Mr. Collins.