Gitlow vs. New York

By Lana Leonard

The Background & Socialism

Before Benjamin Gitlow was arrested for dispersing 16,000 copies of the Left Wing Manifesto in 1919 he was blacklisted from the Merchants’ Association, for which he was a union member (Simkin, 1997). Soon after, in 1909, an 18-year-old Gitlow joined the Socialist Party of America and supported the Russian Revolution.  

Gitlow was born in 1891 in Elizabethport, NJ; three years after his father emigrated from Russia. The Gitlow family lived in poverty and had faith in socialism. Socialism is: a critique of capitalism and the connection of economy and politics where the workers, or the communities, have ownership and power over regulation of the resources they need rather than capitalist guided third parties. The Stanford Encyclopedia of Philosophy states that the 1924 Dictionary of Socialism attributes its author (Angelo Rappopart) saying there are more than 40 definitions of socialism, just as any philosophically led theory of economy, politics, and ethics. However, it was at this time that Socialism was held in firm footing in America with the initial publication of the Left Wing Manifesto. The 1919 Manifesto states that the Espionage Act, which made it a crime for anyone to cause insubordination or disloyalty in military forces or to obstruct recruiting slowed down the socialist movement. There is reason to believe that the political and capitalist structures implemented in America in this time held faith that socialism was rooted in overthrowing the government. It seems that Gitlow was entangled with this idea that identifying as a socialist revolutionary meant you had to have a plan to overthrow the government. Perhaps he and the Socialist Party of New York did hold that plan, but if they did: Would they be justified as the proletariat? Would the Second Amendment validate the right to bear arms against systems of oppression taking people from not only their jobs, but their homes, resources and capital? Capitalists would invalidate this effort because they do and because they have. The most problematic of social programs are denounced by Republicans and centrists alike. For the sake of background and understanding of the broad spectrum of socialism led policy, let’s name a few examples. One of them is Universal Basic Income or UBI. In the research of Ive Marx, an economy and sociology professor at the University of Antwerp, UBI was found to lower wealth inequality but increase poverty. Universal Basic Income is a government sponsored program that disperses income to families in poverty and, or, experiencing income inequality. Keep in mind, poverty and income inequality are not the same thing. 

Ultimately,  we must question: What language of the Manifesto put Gitlow in handcuffs? Berenberg states in the “Manifesto itself” section: “Two things only could issue forth; either international capitalist control, through a League of Nations, or social revolution and the dictatorship of the proletariat. Both of these forces are today contending for world power.” Berenberg insinuates that the fight for socialism is itself a war against capitalism, our country’s lustrous economic love affair. Anti-communism sentiment can be traced back to our Founding Fathers. Alexander Hamilton is one of the most influential Federalists, or nationalists that believed in the power of the elite, property owning population of American society. In fact, it is centrism, conservatism, nationalism and elitism that stole this land. I believe it is those qualities that polarize the two party system, thus creating a policy and economy that mimics the monarchy it swore to flee for freedom. Gitlow is just a pawn in the system. A speck of dust on the shoulders of the Red Scare. 

The Law

The Supreme Court upheld the United States Criminal Anarchy Statute against Gitlow in 1925. The statute was passed due to the growing number of anarchists who seem to threaten Homeland Security, the FBI, and the U.S. Government even today. When the statute was passed in 1902, it prohibited advocating for the violent overthrow of a government. In the 7-2 court decision that convicted Gitlow, left an ongoing continuation of what speech was protected under the First Amendment and the due process clause of the Fourteenth Amendment and what was not. Gitlow was among those whose dispersion of language brought malice against the United States (in the eyes of the law). Also, it is important to note that these restrictions on anarchism and free speech had a lot to do with how the Government dealt with the Red Scare (brought on during World War I and influenced by the Russian Revolution. The “Red” half of “Red Scare” is named after Marx or colors of the flags used by communists). 

Federalism is adjacent to nationalism. The party’s organization vehemently upholds the power of the national government and the dispersion of that power to the state government which both uphold constitutional powers. This relationship constitutes an understanding of the legal framework that sent Gitlow and many others to jail and later influenced a second Red Scare. There are three important dimensions in the relationship of the First Amendment and Federalism that helped prompt the legal justifications of the Red Scare as outlined on Middle Tennessee State University’s website: 

1. “The first centers on the political theory of the founders and their original intent as reflected in the design of the relationship between the national and state governments and in the ratification and amendment processes they created at the Constitutional Convention of 1787 (Hail, 2009).”
2. “The second dimension is the political development of the national government and the establishment of a nation-led intergovernmental partnership with subsequent interpretation of national policy authority under the First Amendment (Hail, 2009).”
3. “The third dimension is the political development of the state governments under a nation-led intergovernmental partnership with subsequent interpretation of national policy authority under the First Amendment and concurrent state constitutional guarantees of freedom of speech, religion, press, and assembly (Hail, 2009).”

The Case

In the U.S. Report: Gitlow v. New York, 268 U.S. 652 (1925), it states: “… advocating, advising or teaching the doctrine that organized government should be so overthrown, does not penalize the utterance or publication of abstract doctrine or academic discussion having no quality of incitement to any concrete action, but denounces the advocacy of action for accomplishing the overthrow of organized government by unlawful means, and is constitutional as applied to a printed “Manifesto” advocating and urging mass action.”  This in itself materializes a direct threat to the United States i.e. violates the Sedition Act, Advocacy of Criminal Anarchy and Statutory Crime of Criminal Anarchy according to the case opinion made by Justice Sanford. Gitlow’s indictment was in two counts: One, the defendant advocated, advised and taught the duty, necessity, and propriety of violently overturning and overthrowing the government by force in the name of The Left Wing Manifesto; two, the defendant knowingly circulated the material in the paper called “The Revolutionary Age” which contained writings set forth in the first count (Sanford, 1925). 

Dissenting opinions came from Mr. Justice Holmes and Mr. Justice Brandeis where they believed in the reversal of the judgements against Gitlow. In the minority opinion, Justice Holmes states: 

“MR. JUSTICE BRANDEIS and I are of the opinion that this judgment should be reversed. The general principle of free speech, it seems to me, must be taken to be included in the Fourteenth Amendment, in view of the scope that has been given to the word “liberty” as there used, although perhaps it may be accepted with a somewhat larger latitude of interpretation than is allowed to Congress by the sweeping language that governs or ought to govern the laws of the United States. If I am right, then I think that the criterion sanctioned by the full Court in Schenck v. United States, 249 U.S. 47, 52, applies.”

Charles Schenck was the general secretary of the U.S. Socialist Party which resisted the implementation of the military draft. The party drafted 15,000 leaflets insisting drafted men resist the draft.  This action went against the Espionage Act which made it illegal during Wartime to “willfully make or convey false reports or false statements with intent to interfere with the operation or success of the military or naval forces of the United States… ”  Under this act people also could not shall not willfully obstruct military or naval forces of the United States. Schenck and his attorney argued that the Espionage Act was unconstitutional and Schenck was protected under the first amendment. In the end, the court issued a unanimous ruling upholding the Espionage Act–upholding the same ruling held in Gitlow v. New York. 

Conclusion

Gitlow is one of many whose lives were destroyed in over one hundred year fear of socialism against the American Constitution. There is so much history in just one case. We must analyze the social aspect of law and how history is implemented into law. Without deliberating intersectionality, we fail to understand the Federalist agenda set forth by Founding Fathers such as Alexander Hamilton and James Madison. The roots of our history are well incorporated into the modernity of socialism argument. Gitlow and Schneck do not live in a vacuum and their opinions of socialism are as Angelo Rappoport would say in his 1924 Dictionary of Socialism, one of the many mansions in the house of socialism. 

Works Cited

1. Beaumont, Elizabeth (2009). Gitlow v. New York (1925). The Middle Tennesee State University. Retrieved Oct, 28, 2021. https://www.mtsu.edu/first-amendment/article/80/gitlow-v-new-york
2. Editors of Encyclopaedia Britannica. Schneck v. United States. Britannica. Retrieved Oct. 28, 2021. https://www.britannica.com/event/Schenck-v-United-States
3. Gilabert, Pablo and Martin O’Neill (2019). Socialism. The Stanford Encyclopedia of Philosophy. Retrieved Oct. 28, 2021. Edward N. Zalta (ed.), URL = <https://plato.stanford.edu/archives/fall2019/entries/socialism/>.
4. Hail, W. Michael (2009). Federalism. The Middle Tennessee State University. Retrieved Oct. 28, 2021. https://mtsu.edu/first-amendment/article/807/federalism
5.  History.com Editors (2020). Federalist Papers. History. Retrieved Oct. 28, 2021. https://www.history.com/topics/early-us/federalist-papers 
6. Holmes, Wendell Oliver (1925). Dissenting Opinion in Gitlow v. New York. Teaching American History. Retrieved Oct. 28, 2021. 
7. Lee, W. E., Stewart, D. R., & Peters, J. (2021). Chapter 2, The First Amendment. In The law of public communication (Tenth, p. 46). essay, Routledge. 
8. Rev. Ben Johnson (2020). Marx v. Universal Basic Income. Transatlantic Blog at Acton Institute. Retrieved Oct. 28, 2021. https://www.acton.org/publications/transatlantic/2020/04/17/marx-vs-universal-basic-income
9. Simkin, J. (1997, September). Benjamin Gitlow. Spartacus Educational. Retrieved October 25, 2021, from https://spartacus-educational.com/USAgitlowB.htm. 
10. U.S. Report: Gitlow v. The People of New York (1924). Library of Congress. Retrieved Oct. 28, 2021. https://tile.loc.gov/storage-services/service/ll/usrep/usrep268/usrep268652/usrep268652.pdf