Benjamin Gitlow and Clarence Brandenburg would seem to have had little in common, but each was responsible for bringing a case that resulted in an important revolution in interpreting the meaning of free speech.
Benjamin Gitlow was born in New Jersey in 1891, the son of Russian Jewish immigrants. His family soon moved to New York, where they earned a meager living and often hosted discussions supporting the labor movement. The Gitlow family approved of the Bolshevik Revolution in Russia and believed the worldwide communist revolution would usher in relief from grinding poverty. As a child, Gitlow heard many accounts of Tsarist abuse of the Russian people, and developed an affinity for socialism. When he was eighteen, Gitlow joined the Socialist Party and soon held various positions of leadership within the group. He, like most Socialists, opposed World War I and in 1917 was one of ten Socialists elected to the New York State Assembly on an anti-war platform. Thereafter, Gitlow’s philosophy moved left and along with two others, he established the Communist Labor Party. Gitlow became editor and business manager for The Revolutionary Age, the party’s newspaper, which published the Left Wing Manifesto and other historical analysis detailing the philosophy of communism. These materials affirmed that “massed action of the proletariat is the only means of overthrowing the capitalistic State.” In November 1919, Gitlow was arrested for publishing these documents, which the government charged had advocated the overthrow of the U.S. government by force. Gitlow later wrote, “I was the first Communist in the United States to be prosecuted for the advocacy of Communism.”
Gitlow and his associates had run afoul of New York’s 1902 Criminal Anarchy Law, which had been enacted in the aftermath of the assassination of President William McKinley by anarchist Leon Czolgosz in 1901. The law made it a felony to advocate the overthrow of 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,” and had been applied in only one minor case prior to Gitlow’s.
Prompted by an influx of poor immigrants from eastern Europe, economic difficulties, labor unrest, and a series of bombings by suspected anarchists, a Red Scare swept the United States after the end of World War I. In 1919 search warrants were issued for a raid of communist and socialist organizations in New York, yielding “many tons of seditious and anarchist literature.” Chief City Magistrate William McAdoo wrote,
The Manifesto itself declares that this is the golden opportunity of the red revolutionists. Is this not a call to action for those who are sworn to uphold the laws of their country? … Liberty of speech! It is the very breath and soul of every American; it is the essence of our republicanism and we guard it with such jealousy that we have hitherto tolerated its abuse into a license which now threatens our institutions. Are there no limits to liberty of speech? Can these men openly state that they intend to destroy the state, murder whole classes of citizens, rob them of their property, and then escape under the plea of liberty of speech?
At trial, Gitlow was represented by attorneys Clarence Darrow and others provided by the National Civil Liberties Bureau, which soon changed its name to American Civil Liberties Union (ACLU). They argued passionately that the anarchy laws violated the First Amendment’s guarantees of free speech and press. Further, they contended for the first time that these First Amendment guarantees protecting against national laws also applied against state laws by the Fourteenth Amendment’s protection of life, liberty, and property in the Due Process Clause. It took the jury about 45 minutes to find Gitlow guilty, and he was sentenced to prison. He began serving his term, but was released in 1922 to appeal his conviction.
Clarence Darrow was not involved in Gitlow’s appeals, but ACLU attorneys pressed the constitutional issue: “whether the statute, as construed and applied in this case, by the State courts, deprived the defendant of his liberty of expression in violation of the due process clause of the Fourteenth Amendment.”
Justice Edward T. Sanford wrote in a 7-2 decision in 1925 that Gitlow’s attorneys were right—the Due Process Clause of the Fourteenth Amendment requires the states to protect the First Amendment’s guarantees of free speech. This case was the beginning of the development of “incorporation,” a fifty-year process to selectively include certain rights that the states must protect as fundamental liberties based on the Fourteenth Amendment’s Due Process Clause. However, the majority also ruled that the Left Wing Manifesto went further than the expression of abstract doctrine because it advocated and urged “revolutionary mass action [to] overthrow and destroy organized parliamentary government.” Although the majority agreed with the principle that government at all levels must protect fundamental liberties, the Court ruled that Gitlow’s pamphlet could be “a revolutionary spark,”—too dangerous to allow—and the decision upheld Gitlow’s conviction. He briefly returned to prison, but New York Governor Alfred E. Smith pardoned him and he was released in December of 1925.
Justices Holmes and Brandeis dissented, holding to a more robust interpretation of free speech: ”Eloquence may set fire to reason. But whatever may be thought of the redundant discourse before us, it had no chance of starting a present conflagration.” This approach called for punishment of action, not expression.
Later, Gitlow visited Russia, and in 1928 he ran for Vice President of the U.S. on the Communist Party ticket. In his autobiography, Gitlow wrote, “My break with Stalin in 1929 forced me to reexamine in a critical way the activities and tenets of the Communist movement. My break with Communism, however, did not come suddenly…” During Hitler’s rise to power, Gitlow became convinced that autocracy, regardless of its philosophical justification, deprived people of their freedom and “their most valuable possessions.” He publicly denounced communism in 1939 and became a popular anti-communism writer and speaker in the 1940s and 1950s. He died in 1965.
Another landmark case, Brandenburg v. Ohio (1969) also addressed the limits of free speech. Clarence Brandenburg was a 48 year-old television repair shop owner in Arlington Heights, Ohio, and a leader in the Ohio chapter of the Ku Klux Klan. He invited a Cincinnati television news crew to video a meeting to be held on a nearby privately-owned farm in late June, 1964. The resulting video, which was aired on local news, shows a hooded and robed speaker delivering a rambling address filled with racial epithets to twelve members of the Ku Klux Klan gathered in the meadow. In the video a cross is burning and some of the audience members, but not the speaker himself, are visibly armed. The speech included this statement: “We’re not a revengent organization, but if our President, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, it’s possible that there might have to be some revengeance (sic) taken…” The remarks included plans for a July 4 march on Washington D.C. in less than a week, and stated that “[African-Americans] should be returned to Africa and the Jew returned to Israel.”
Soon after the video was aired, a tip led to the arrest of the speaker, Clarence Brandenburg, and he was charged with violation of Ohio’s 1919 Criminal Syndicalism statute. This law prohibited advocating “crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform,” and assembling “with any society, group, or assemblage or persons formed to teach or advocate the doctrines of criminal syndicalism.” In a short trial Brandenburg was found guilty, fined, and sentenced to prison. Needing free legal assistance to plan his appeal of the conviction, Brandenburg agreed to accept the help of the ACLU. Attorney Allen Brown, wrote, “Clarence had to make a deal with the devil,” because Brandenburg despised the ACLU’s philosophy and causes. Ohio appellate courts quickly upheld the conviction, and the U.S. Supreme Court accepted the case to decide whether the Ohio law was an unconstitutional restriction on free speech.
The government’s position was that the law, which was similar to laws in many states, was constitutional, and Brandenburg’s speech had clearly advocated violence. Since Brandenburg had invited the press to the event, he undoubtedly wanted to stir widespread participation in the activities he had in mind.
In a unanimous per curiam opinion first drafted by Justice Abe Fortas and later edited and completed by Justice William Brennan, the Court overturned the syndicalism statute and crafted a new test to be employed in free speech cases. They ruled that “Freedoms of speech and press do not permit a State to forbid advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Even speech advocating illegal behavior was protected unless it was intended to, and likely to, result in immediate harm. Each part of the new rule was important. The Supreme Court ruled that, even though he vaguely advocated violence against the Congress, President, and the Supreme Court itself, the First Amendment protected his speech. Regardless of Brandenburg’s intent, a speech that fails to even articulate a call to action before twelve people on an Ohio farm was unlikely to stir imminent harmful behavior. This decision implemented a remarkably robust protection of free speech and ended the clear and present danger test that had undergone numerous revisions in the previous fifty years. As a result, federal and state laws that restricted subversive speech were invalidated and the United States adopted a very high level of protection for political expression. In his concurring opinion in Whitney v. California (1927) Justice Louis Brandeis wrote, “fear of serious injury cannot alone justify suppression of free speech and assembly…the remedy to be applied is more speech, not enforced silence.” The Brandenburg test of free speech brought interpretation of the principle into line with the rule advocated by Brandeis decades earlier.
Gitlow v. New York Supreme Court decision: http://caselaw.findlaw.com/us-supreme-court/268/652.html
Brandenburg v. Ohio Supreme Court decision: http://caselaw.findlaw.com/us-supreme-court/395/444.html
Gennie Westbrook, formerly a classroom teacher, is a Madison Fellow (2000 TX), and senior advisor for education at The Bill of Rights Institute.
Donald A. Downs. Brandenburg v. Ohio (1969) The Oxford Companion to the Supreme Court, Kermit Hall, ed. New York: Oxford University Press 1992
Susan M. Gilles. Brandenburg v. State of Ohio: An “Accidental,” “Too Easy,” and “Incomplete” Landmark Case, Capital University Law Review, 2010. law.capital.edu/WorkArea/DownloadAsset.aspx?id=20641
Michael Hannon. “The People v. Benjamin Gitlow (1920). University of Minnesota Law Library, 2010 moses.law.umn.edu/darrow/trialpdfs/Gitlow_Case.pdf
Jeff Howard. The ‘Brandenburg test’ for incitement to violence, Free Speech Debate http://freespeechdebate.com/case/the-brandenburg-test-for-incitement-to-violence/
David L. Hudson, Jr. Landmark Case Set Precedent on Advocating Force, Newseum Institute June 9, 2009. http://www.newseuminstitute.org/2009/06/09/landmark-case-set-precedent-on-advocating-force/
Steve Kissing. Brandenburg v. Ohio, Cincinnati Magazine, August 2001
Adam Liptak. “Unlike Others, U.S. Defends Freedom to Offend in Speech” New York Times June 12, 2008 http://www.nytimes.com/2008/06/12/us/12hate.html
Paul L. Murphy. Gitlow v. New York (1925) The Oxford Companion to the Supreme Court, Kermit Hall, ed. New York: Oxford University Press 1992
Geoffrey R. Stone. Perilous Times: Free Speech in Wartime New York: W. W. Norton & Company, 2004