Benjamin Gitlow Trials: 1920-25

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Benjamin Gitlow Trials: 1920-25

Defendant: Benjamin Gitlow
Crime Charged: Criminal Anarchy
Chief Defense Lawyers: Trial Court: Clarence Darrow; U.S. Supreme Court: Walter H. Pollak, Walter Nelles
Chief Prosecutors: Trial Court: Alexander I. Rorke; U.S. Supreme Court: John Caldwell Meyers, W. J. Wetherbee, Claude T. Dawes
Judges: Trial Court: Bartow S. Weeks; U.S. Supreme Court: Chief Justice William Howard Taft, Willis Van Devanter, James McReynolds, Edward T. Sanford, George Sutherland, Pierce Butler, Harland Fiske Stone, Louis Brandeis, Oliver Wendell Holmes
Places: Trial Court: New York, New York; U.S. Supreme Court: Washington, D.C.
Dates of Trials: Trial Court: January 30-February 5, 1920; Supreme Court decision: June 8, 1925
Verdict: Guilty
Sentence: Five to ten years in prison

SIGNIFICANCE: Benjamin Gitlow was charged in 1919 with "criminal anarchy" by the state of New York. His offense: publishing the Left Wing Manifesto, a call for revolution. He was convicted and sentenced to five to ten years in prison. The verdict was upheld by the New York Court of Appeals and affirmed by the U.S. Supreme Court. The case is significant not because the Supreme Court upheld Gitlow's right to publish what he did. It did not. The Court held that the states' police power allowed New York to prosecute utterances that were blatantly inimical to the general welfare. But for the first time, it held that the Fourteenth Amendment's due process clause protected personal rights, like freedom of speech, as well as property rights, from infringement by the states.

When World War I ended, the Communist revolution in Russia was in full swing. Communist uprisings were occurring in Germany, Hungary, Finland, and other countries. In the United States, there was a "red scare." In November 1919, New York police rounded up leaders of the left wing of the disintegrating American Socialist Party. One was Benjamin Gitlow, a former state representative and publisher of a left-wing Socialist newspaper (he was later to become a co-founder of the Communist Labor Party). He was charged with criminal anarchy for publishing The Left Wing Manifesto, which called for "mass strikes of the American proletariat," to overthrow the government.

Darrow for the Defense

Realizing the strength of the anti-Red hysteria, the Socialists knew they needed a powerful trial lawyer. They persuaded Clarence Darrow to take the case. Darrow was not optimistic.

"I know you are innocent, but they have the country steamed up," Darrow told Gitlow. "Everybody is against the Reds."

Gitlow later wrote that Darrow "seemed not a little frightened when I told him I intended to stand by every Communist principle and to defend my position regardless of the consequences."

Darrow said that in that case, there was no use in Gitlow taking the stand. Gitlow agreed, but demanded to be allowed to address the jury in his own way.

"Well, I suppose a revolutionist must have his say in court even if it kills him," Darrow said.

"I Ask No Clemency"

A special jury had been selected from New York's wealthy and conservative "Silk Stocking District." Gitlow insisted that Darrow defend the right of revolution.

"For a man to be afraid of revolution in America, would be to be ashamed of his own mother," the lawyer told the jury, reminding it of the American Revolution.

Then Gitlow rose to make his own statement. He told the jury he agreed with the principles expressed in the manifesto. "No jails will change my opinion in this respect. I ask no clemency. I realize that as an individual I have a perfect right to my opinions, that I would be false to myself if I tried to evade that which I supported.… All I ask of you gentlemen of the jury is to consider the language of the manifesto, to realize that the manifesto stands for a new order in society, a new form of government, that the Communists believe in a new form of society and necessarily in a new form of government and will bend all their efforts in that direction."

His stalwart defense of Communism earned Gitlow an honorary membership in the Moscow Soviet. It also got him a guilty verdict and a sentence of five to ten years in prison.

Gitlow went to Sing Sing, but in April 1922, he was released on bail pending a decision on his appeal to the state court of appeals. The basis of his appeal was that the conviction violated the due process clause of the Fourteenth Amendment.

The Fourteenth Amendment

The Fourteenth Amendment, passed after the Civil War, was intended to prevent the former Confederate states from depriving freed slaves of their rights by making the Bill of Rights apply to states as well as the federal government. In 1833, in Baron v. Baltimore, the Supreme Court had ruled that the Bill of Rights did not apply to the states. Without the amendment, everyone knew there would be no freedom for ex-slaves. But in 1873, seven years after the passage of the amendment, the Supreme Court effectively nullified it. In the Slaughterhouse Cases, it held that there were two forms of citizenship—U.S. citizenship and state citizenship. The amendment guaranteed the rights of all persons as U.S. citizens, but had nothing to do with what rights they enjoyed as state citizens.

In 1897, in Allgeyer v. Louisiana, the Court ruled that the Fourteenth Amendment protected 'liberty of contract" by corporations from interference by state governments. It did not hold, however, that the amendment prevented states from interfering with the personal liberties, like freedom of speech, guaranteed by the Bill of Rights.

On July 12, 1922, the appellate division of the court of appeals upheld Gitlow's conviction. He went back to Sing Sing, where the inmates nicknamed him Mr. In And Out. In December, Mr. In And Out was out again, released on bail when the U.S. Supreme Court agreed to hear his appeal. The case was argued before the Court twice in 1923.

Unnoticed Landmark

On June 8, 1925, the Supreme Court issued its decision. Gitlow's conviction was affirmed by a 7-2 vote. The two dissenters, Louis Brandeis and Oliver Wendell Holmes, had long been called "the dangerous twosome" by conservatives.

"Gitlow v. New York is one of the landmark cases in constitutional law," says Leo Pfeffer, a lawyer generally regarded as one of the nation's leading authorities on the Bill of Rights. "Its importance has been obscured by the fact that the actual holding was to affirm the conviction of a radical who had exercised freedom of speech; but this was merely incidental."

"For the first time," Pfeffer wrote in This Honorable Court, "the Court proceeded on the assumption that liberty in the due process clause included liberty of expression."

After reviewing Gitlow's case, Justice Edward T. Sanford, writing the majority decision, wrote, "For present purposes we may and do assume that freedom of speech and of the press—which are protected by the First Amendmentfrom abridgement by Congress—are among the fundamental personal rights and 'liberties' protected by the due process clause of the Fourteenth Amendment from impairment by the States."

So, offhandedly, without fanfare, without notice in the press, the Court made one of the great advances in American civil liberties. Gitlow's conviction was upheld, but it was followed by a series of other cases involving people convicted of essentially the same crime that were reversed.

For the moment, Mr. In And Out had to go back in. But on December 11, 1925, New York governor Alfred E. Smith pardoned the stubborn radical.

Gitlow v. Stalin

Gitlow continued agitating, but in 1929, when in Moscow as a delegate to the Comintern, he defied Josef Stalin to his face. He told Stalin that plans developed in Moscow would not work in America. He was expelled from the Comintern and then from the U.S. Communist Party. For a while, he worked with some dissident Communist groups, but by the late thirties, he had become bitterly anti-Communist. He testified before many congressional committees and wrote and lectured extensively against Communism. He died in 1965.

For all his activity, though, his greatest legacy comes from the case he fought all the way up to the Supreme Court—and lost at every stage.

—William Weir