Criminal Law Library Blog
The following is a discussion of the book Gitlow v. New York: Every Idea an Incitement. In his study, Marc Lendler opens up the world of American radicalism, traces the origin of the incorporation doctrine, which was addressed for the first time in this case, and the ebb and flow of Gitlow as a precedent through the Cold War and beyond. Gitlow v. New York: Every Idea an Incitement is a book for our time.
In 1919 American Communist Party member Benjamin Gitlow was arrested for distributing a “Left Wing Manifesto,” a publication inspired by the Russian Revolution. He was charged with violating New York’s Criminal Anarchy Law of 1902, which outlawed the advocacy of any doctrine advocating for the violent overthrow of government. Gitlow argued that the law violated his right to free speech, but he was still convicted. He appealed the decision; however, five years later the Supreme Court upheld his sentence by a vote of 7-2.
Throughout the legal proceedings, much attention was devoted to the “bad tendency” doctrine—the idea that speakers and writers were responsible for the probable effects of their words—which the Supreme Court explicitly endorsed in its decision. According to Justice Edward T. Sanford, “A state may punish utterances endangering the foundations of organized government and threatening its overthrow by unlawful means.”
More important was Justice Oliver Wendell Holmes’ dissent, in which he argued that the mere expression of ideas, separated from action, could not be punished under the “clear and present danger” doctrine. As Holmes put it, “Every idea is an incitement”—and the expression of an idea, no matter how disagreeable, was protected by the First Amendment. While the majority disagreed, it also raised and endorsed the idea that the Bill of Rights could be violated by neither the federal government nor individual states—an idea known as “incorporation,” that was addressed for the first time in this case.
In recreating Gitlow, Marc Lendler opens up the world of American radicalism and brings back into focus a number of key figures in American law: defense attorney Clarence Darrow; New York Court of Appeals justices Roscoe Pound and Benjamin Cardozo; Walter Pollak of the fledgling ACLU; and dissenting justices Oliver Wendell Holmes and Louis Brandeis. Lendler also traces the origins of the incorporation doctrine and the ebb and flow of Gitlow as a precedent through the end of the Cold War.
In a time when Islamic radicalism raises many of the same questions as domestic Communism did, Lendler’s cogent explication of this landmark case helps students and Court-watchers alike better understand “clear and present danger” tests, ongoing debates over incitement, and the importance of the Holmes-Brandeis dissent in our jurisprudence.
In his introduction to this book, Lendler discusses the ongoing importance and timeliness of the Gitlow case.
”Every era revisits the bad tendency principle in light of whatever relationship between words and harmful acts seems especially threatening at the time. In 1919 the problem was the possibility of class conflict and revolution. At the start of the Cold War the fear was that activity by domestic Supporters of the Soviet Union might be harmful to national security. In the contemporary era the debates have involved graphic descriptions of violence in books, in movies, or on the Internet; speech denigrating ethnic groups or women; and speech supporting Islamic radicalism. In the future the subject will be different, but the debate will be the same: how should the law be applied to words that might lead to crimes? In those debates, a look back at Gitlow will be unavoidable.”
In my role as a Law Librarian I had the privilege of helping Marc Lendler locate the trial transcripts he consulted in preparation of this book, as explained in his Acknowledgment:
” In the nine years between this book’s conception and completion a number of people have provided help and direction that were indispensable. My first task before deciding that the Gitlow case was worth exploring was to see whether a transcript of the trial still existed. Fortunately, I was directed to David Badertscher, librarian at the New York Supreme Court Law Library who was both knowledgeable and very helpful; he located the Gitlow transcript and those of the four related trials discussed in chapters 2 and 4. and let me sit in the library’s microfilm room for eight hours a day over several months.”
Working with Lendler during his time at our library taught me that if given adequate resources, latitude, and support from management, librarians can make significant contributions to the dissemination of information critical to an understanding of complex issues in our society.