Evening star., 1925-06-09
The Gitlow Decision.


The Gitlow Decision.
- In a decision maintained by the as
sent of seven of the nine justices, the
Supreme Court has sustained the con-
stitutionality Of the New York statute
under which Benjamin Gitlow was
convicted Of criminal anarchy in 1920
and sentenced to a prison term OF
from to 10 years. The ma ajority of
the court holds that the State law Is
not contrary to the freedom of
speech" provision of the Federal Con-
stifution, and that the defendant was
not convicted without due process
OF law" 1t holds that the State has
the right to protect itself against the
overthrow of organized government,
and that Gitlows utterances and writ
ings were calculated to foster d SUBJ
yersive movement of that character.
Much latitude has been granted in
this country to the exponents of
anarchistic doctrines and advocates of
mass movements for the overthrow of
government. Their language has in
the main been academic, loose and
rarely specific, and seldom have they
gone to the point of definite sedition.
In the present decision the Supreme
Court holds that the defendant was
engaging in, not an expression of
philosophical abstraction" or a mere
prediction of future events" but was
using the language of direct incite-
rnent 1t thus distinguishes between
the theorizer and the advocate and
planner of an actually subversive
movement.
The dissenting opinion filed in this
case, supported by two members of
the court, holds that the language
upon which conviction was based was
not seditious because Of its futility.
The minority of the court holds that
"there was no present danger Of an
attempt to overthrow the Government
by force on the part of the admit
tedly small minority who shared the
defendants views" In short, accord
ing to this concept of the case, the
measure of sedition lies in the number
of those whose opinion it expresses
and not in the character of the pro-
posal, plan or theory. 1t has been
often said that successful sedition is
revolution, and that revolution is war
ranted if it represents a majority
sentiment of the people. Thus, ac-
cording to the minority opinion Of the
10 h
yersive anarchism, for If it fails it is
theoretical and futile, and if it sue
ceeds it is justifiable public opinion.
Denial of the freedom of speech is
not involved in. the enactment and
enforcement of laws which are de-
versive radicalism. Advocacy of
theory of a different form OF govern
ment is not denied. But in this case,
as in many others that have not come
to the point of prosecution and pun
fshment, in large degree in conse-
quence of a policy of tolerance, there
was actually a call for action, a sum-
noning of the forces of disruption,
mandate for revolt.
~ was only theorizing, only point
ing out the way to the ideal govern
ment," says the anarchist who is held
for seditious utterances. Il was only
exercising the right of free speech in
expressing my opinion of what gov
ernment should be, not raising the
standard of rebellion" Such in effect
was the defense in the Gitlow case
The Supreme Court says now that
that is no defense, that incitation to
revolution for the overturning Of gov
ernment is a crime against the United
States or against any State that has a
specific statute such as that of New
York, which is now sustained. This
decision will strengthen the defenses
OF this country against radical sub
version. Even though the defendant
in this case, who has already served
a considerable length Of time in prison,
should be now pardoned by Gov. Smith
of New York, the decision stands as
a safeguard for sound government.