U.S. Supreme Court Gitlow v. People, 268
U.S. 652 (1925) Gitlow v. People No.19 Argued April 12, 1923 Reargued November 23,
1923 Decided June 8, 1925 268
U.S. 652 ERROR TO THE SUPREME COURT OF THE
STATE OF NEW YORK Syllabus 1. Assumed, for the purposes of the case, that freedom
of speech and of the press are among the personal rights and
liberties protected by the due process clause of the Fourteenth
Amendment from impairment by the States. P. 268 U. S.
666 .

															2. Freedom of speech and of the press, as secured by the
Constitution, is not an absolute right to speak or publish without
responsibility whatever one may choose or an immunity for every
possible use of language. P. 268 U. S.
666 .

															3. That a State, in the exercise of its police power, may punish
those who abuse this freedom by utterances inimical to the public
welfare, tending to corrupt public morals, incite to crime or
disturb the public peace, is not open to question. P. 268 U.S. 667 .

															4. For yet more imperative reasons, a State may punish
utterances endangering the foundations of organized government and
threatening its overthrow by unlawful means. P. 268 U.S. 667 .

															5. A statute punishing utterances advocating the overthrow of
organized government by force, violence and unlawful means, imports
a legislative determination that such utterances are so inimical to
the general welfare and involve such danger of substantive evil
that they may be penalized under the police power, and this
determination must be given great weight, and every presumption be
indulged in favor of the validity of the statute. P. 268 U. S.
668 .

															6. Such utterances present sufficient danger to the public peace
and security of the State to bring their punishment clearly within
the range of legislative discretion, even if the effect of a given
utterance cannot accurately be foreseen. P. 268 U. S.
669 .

															7. A State cannot reasonably be required to defer taking
measures against these revolutionary utterances until they lead to
actual disturbances of the peace or imminent danger of the State's
destruction. P. 268 U. S.
669 .

															8. The New York statute punishing those who advocate, advise or
teach the duty; necessity or propriety of overthrowing or
overturning organized government by force, violence, or any
unlawful means, or who print, publish, or knowingly circulate any
book, Page 268 U. S. 653 paper, etc., 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 which shall progressively foment industrial
disturbances and, through political mass strikes and revolutionary
mass action, overthrow and destroy organized parliamentary
government; even though the advocacy was in general terms, and not
addressed to particular immediate acts or to particular person. Pp. 268 U. S. 654 , 268 U. S.
672 .

															9. The statute being constitutional, it may constitutionally be
applied to every utterance not too trivial to be beneath the notice
of the law -- which is of such a character and used with such
intent and purpose as to bring it within the prohibition of the
statute, and the question whether the specific utterance in
question was likely to bring about the substantive evil aimed at by
the statute is not open to consideration. Schenck v. United
States, 249 U. S. 47 ,
explained. P. 268 U. S.
670 .

															195 App.Div. 77; 234 N.Y. 132, 539, affirmed.

															ERROR to a judgment of the Supreme Court of New York, affirmed
by the Appellate Division thereof and by the Court of Appeals,
sentencing the plaintiff in error for the crime of criminal
anarchy, (New York Laws, 1909, c. 88), of which he had been
convicted by a jury. Page 268 U. S. 654 MR. JUSTICE SANFORD delivered the opinion of the Court.

															Benjamin Gitlow was indicted in the Supreme Court of New York,
with three others, for the statutory crime of criminal anarchy. New
York Penal Laws, §§ 160, 161. [ Footnote 1 ] He was separately tried, convicted, and
sentenced to imprisonment. The judgment was affirmed by the
Appellate Division and by the Court of Appeals. 195 App.Div. 773;
234 N.Y. 132 and 539. The case is here on writ of error to the
Supreme Court, to which the record was remitted. 260 U.S. 703.

															The contention here is that the statute, by its terms and as
applied in this case, is repugnant to the due process clause of the
Fourteenth Amendment. Its material provisions are:

															"§ 160. Criminal anarchy defined. Criminal anarchy is
the doctrine that organized government should be overthrown 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. The advocacy of such doctrine either by word of mouth or
writing is a felony."

															"§ 161. Advocacy of criminal anarchy. Any person
who:"

															"1. By word of mouth or writing advocates, advises or teaches
the duty, necessity or propriety of overthrowing or overturning
organized 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; or,"

															"2. Prints, publishes, edits, issues or knowingly circulates,
sells, distributes or publicly displays any book, paper, document,
or written or printed matter in any Page 268 U. S. 655 form, containing or advocating, advising or teaching the
doctrine that organized government should be overthrown by force,
violence or any unlawful means"

															"Is guilty of a felony and punishable"

															by imprisonment or fine, or both.

															The indictment was in two counts. The first charged that the
defendant had advocated, advised and taught the duty, necessity and
propriety of overthrowing and overturning organized government by
force, violence and unlawful means, by certain writings therein set
forth entitled "The Left Wing Manifesto"; the second, that he had
printed, published and knowingly circulated and distributed a
certain paper called "The Revolutionary Age," containing the
writings set forth in the first count advocating, advising and
teaching the doctrine that organized government should be
overthrown by force, violence and unlawful means.

															The following facts were established on the trial by undisputed
evidence and admissions: the defendant is a member of the Left Wing
Section of the Socialist Party, a dissenting branch or faction of
that party formed in opposition to its dominant policy of "moderate
Socialism." Membership in both is open to aliens as well as
citizens. The Left Wing Section was organized nationally at a
conference in New York City in June, 1919, attended by ninety
delegates from twenty different States. The conference elected a
National Council, of which the defendant was a member, and left to
it the adoption of a "Manifesto." This was published in The
Revolutionary Age, the official organ of the Left Wing. The
defendant was on the board of managers of the paper, and was its
business manager. He arranged for the printing of the paper, and
took to the printer the manuscript of the first issue which
contained the Left Wing Manifesto, and also a Communist Program and
a Program of the Left Wing that had been adopted by the conference.
Sixteen thousand Page 268 U. S. 656 copies were printed, which were delivered at the premises in New
York City used as the office of the Revolutionary Age and the
headquarters of the Left Wing, and occupied by the defendant and
other officials. These copies were paid for by the defendant, as
business manager of the paper. Employees at this office wrapped and
mailed out copies of the paper under the defendant's direction, and
copies were sold from this office. It was admitted that the
defendant signed a card subscribing to the Manifesto and Program of
the Left Wing, which all applicants were required to sign before
being admitted to membership; that he went to different parts of
the State to speak to branches of the Socialist Party about the
principles of the Left Wing and advocated their adoption, and that
he was responsible for the Manifesto as it appeared, that "he knew
of the publication, in a general way, and he knew of its
publication afterwards, and is responsible for its
circulation."

															There was no evidence of any effect resulting from the
publication and circulation of the Manifesto.

															No witnesses were offered in behalf of the defendant.

															Extracts from the Manifesto are set forth in the margin.
[ Footnote 2 ] Coupled with a
review of the rise of Socialism, it Page 268 U. S. 657 condemned the dominant "moderate Socialism" for its recognition
of the necessity of the democratic parliamentary state; repudiated
its policy of introducing Socialism by legislative measures, and
advocated, in plain and unequivocal language, the necessity of
accomplishing the "Communist Revolution" by a militant and
"revolutionary Socialism", based on "the class struggle" and
mobilizing Page 268 U. S. 658 the "power of the proletariat in action," through mass
industrial revolts developing into mass political strikes and
"revolutionary mass action", for the purpose of conquering and
destroying the parliamentary state and establishing in its place,
through a "revolutionary dictatorship of the proletariat", the
system of Communist Socialism. The then recent strikes in Seattle
and Winnipeg [ Footnote 3 ] were
cited as instances of a development already verging on
revolutionary action and suggestive of proletarian Page 268 U. S. 659 dictatorship, in which the strike-workers were "trying to usurp
the functions of municipal government", and revolutionary
Socialism, it was urged, must use these mass industrial revolts to
broaden the strike, make it general and militant, and develop it
into mass political strikes and revolutionary mass action for the
annihilation of the parliamentary state.

															At the outset of the trial, the defendant's counsel objected to
the introduction of any evidence under the Page 268 U. S. 660 indictment on the grounds that, as a matter of law, the
Manifesto "is not in contravention of the statute," and that "the
statute is in contravention of" the due process clause of the
Fourteenth Amendment. This objection was denied. They also moved,
at the close of the evidence, to dismiss the indictment and direct
an acquittal "on the grounds stated in the first objection to
evidence", Page 268 U. S. 661 and again on the grounds that "the indictment does not charge an
offense" and the evidence "does not show an offense." These motions
were also denied.

															The court, among other things, charged the jury, in substance,
that they must determine what was the intent, purpose and fair
meaning of the Manifesto; that its words must be taken in their
ordinary meaning, as they would be understood by people whom it
might reach; that a mere statement or analysis of social and
economic facts and historical incidents, in the nature of an essay,
accompanied by prophecy as to the future course of events, but with
no teaching, advice or advocacy of action, would not constitute the
advocacy, advice or teaching of a doctrine for the overthrow of
government within the meaning of the statute; that a mere statement
that unlawful acts might accomplish such a purpose would be
insufficient, unless there was a teaching, advising and advocacy of
employing such unlawful acts for the purpose of overthrowing
government, and that, if the jury had a reasonable doubt that the
Manifesto did teach, advocate or advise the duty, necessity or
propriety of using unlawful means for the overthrowing of organized
government, the defendant was entitled to an acquittal.

															The defendant's counsel submitted two requests to charge which
embodied in substance the statement that to constitute criminal
anarchy within the meaning of the statute it was necessary that the
language used or published should advocate, teach or advise the
duty, necessity or propriety of doing "some definite or immediate
act or acts" of force, violence or unlawfulness directed toward the
overthrowing of organized government. These were denied further
than had been charged. Two other requests to charge embodied in
substance the statement that, to constitute guilt, the language
used or published must be "reasonably and ordinarily calculated to
incite certain persons" to acts of force, violence or
unlawfulness, Page 268 U. S. 662 with the object of overthrowing organized government. These were
also denied.

															The Appellate Division, after setting forth extracts from the
Manifesto and referring to the Left Wing and Communist Programs
published in the same issue of the Revolutionary Age, said:
[ Footnote 4 ]

															"It is perfectly plain that the plan and purpose advocated . . .
contemplate the overthrow and destruction of the governments of the
United States and of all the States, not by the free action of the
majority of the people through the ballot box in electing
representatives to authorize a change of government by amending or
changing the Constitution, but by immediately organizing the
industrial proletariat into militant Socialist unions and at the
earliest opportunity through mass strike and force and violence, if
necessary, compelling the government to cease to function, and then
through a proletarian dictatorship, taking charge of and
appropriating all property and administering it and governing
through such dictatorship until such time as the proletariat is
permitted to administer and govern it. . . . The articles in
question are not a discussion of ideas and theories. They advocate
a doctrine deliberately determined upon and planned for militantly
disseminating a propaganda advocating that it is the duty and
necessity of the proletariat engaged in industrial pursuits to
organize to such an extent that, by massed strike, the wheels of
government may ultimately be stopped and the government overthrown.
. . ."

															The Court of Appeals held that the Manifesto "advocated the
overthrow of this government by violence, or by unlawful means."
[ Footnote 5 ] In one of the
opinions representing Page 268 U. S. 663 the views of a majority of the court, [ Footnote 6 ] it was said:

															"It will be seen . . . that this defendant through the manifesto
. . . advocated the destruction of the state and the establishment
of the dictatorship of the proletariat. . . . To advocate . . . the
commission of this conspiracy or action by mass strike whereby
government is crippled, the administration of justice paralyzed,
and the health, morals and welfare of a community endangered, and
this for the purpose of bringing about a revolution in the state,
is to advocate the overthrow of organized government by unlawful
means."

															In the other, [ Footnote 7 ]
it was said:

															"As we read this manifesto, we feel entirely clear that the jury
were justified in rejecting the view that it was a mere academic
and harmless discussion of the advantages of communism and advanced
socialism"

															and

															"in regarding it as a justification and advocacy of action by
one class which would destroy the rights of all other classes and
overthrow the state itself by use of revolutionary mass strikes. It
is true that there is no advocacy in specific terms of the use of .
. . force or violence. There was no need to be. Some things are so
commonly incident to others that they do not need to be mentioned
when the underlying purpose is described."

															And both the Appellate Division and the Court of Appeals held
the statute constitutional.

															The specification of the errors relied on relates solely to the
specific rulings of the trial court in the matters hereinbefore set
out. [ Footnote 8 ] The
correctness of the verdict is not Page 268 U. S. 664 questioned, as the case was submitted to the jury. The sole
contention here is, essentially, that as there was no evidence of
any concrete result flowing from the publication of the Manifesto
or of circumstances showing the likelihood of such result, the
statute as construed and applied by the trial court penalizes the
mere utterance, as such, of "doctrine" having no quality of
incitement, without regard either to the circumstances of its
utterance or to the likelihood of unlawful sequences, and that, as
the exercise of the right of free expression with relation to
government is only punishable "in circumstances involving
likelihood of substantive evil," the statute contravenes the due
process clause of the Fourteenth Amendment. The argument in support
of this contention rests primarily upon the following propositions:
1st, that the "liberty" protected by the Fourteenth Amendment
includes the liberty of speech and of the press, and 2nd, that
while liberty of expression "is not absolute," it may be restrained
"only in circumstances where its exercise bears a causal relation
with some substantive evil, consummated, attempted or likely," and
as the statute "takes no account of circumstances," it unduly
restrains this liberty and is therefore unconstitutional.

															The precise question presented, and the only question which we
can consider under this writ of error, then is 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.

															The statute does not penalize the utterance or publication of
abstract "doctrine" or academic discussion having no quality of
incitement to any concrete action. It is not aimed against mere
historical or philosophical essays. It does not restrain the
advocacy of changes in the form of government by constitutional and
lawful means. What it prohibits is language advocating, advising or
teaching Page 268 U. S. 665 the overthrow of organized government by unlawful means. These
words imply urging to action. Advocacy is defined in the Century
Dictionary as: "1. The act of pleading for, supporting, or
recommending; active espousal." It is not the abstract "doctrine"
of overthrowing organized government by unlawful means which is
denounced by the statute, but the advocacy of action for the
accomplishment of that purpose. It was so construed and applied by
the trial judge, who specifically charged the jury that:

															"A mere grouping of historical events and a prophetic deduction
from them would neither constitute advocacy, advice or teaching of
a doctrine for the overthrow of government by force, violence or
unlawful means. [And] if it were a mere essay on the subject, as
suggested by counsel, based upon deductions from alleged historical
events, with no teaching, advice or advocacy of action, it would
not constitute a violation of the statute. . . ."

															The Manifesto, plainly, is neither the statement of abstract
doctrine nor, as suggested by counsel, mere prediction that
industrial disturbances and revolutionary mass strikes will result
spontaneously in an inevitable process of evolution in the economic
system. It advocates and urges in fervent language mass action
which shall progressively foment industrial disturbances and,
through political mass strikes and revolutionary mass action,
overthrow and destroy organized parliamentary government. It
concludes with a call to action in these words:

															"The proletariat revolution and the Communist reconstruction of
society -- the struggle for these -- is now indispensable.
. . . The Communist International calls the proletariat of the
world to the final struggle!"

															This is not the expression of philosophical abstraction, the
mere prediction of future events; it is the language of direct
incitement.

															The means advocated for bringing about the destruction of
organized parliamentary government, namely, mass industrial Page 268 U. S. 666 revolts usurping the functions of municipal government,
political mass strikes directed against the parliamentary state,
and revolutionary mass action for its final destruction,
necessarily imply the use of force and violence, and, in their
essential nature, are inherently unlawful in a constitutional
government of law and order. That the jury were warranted in
finding that the Manifesto advocated not merely the abstract
doctrine of overthrowing organized government by force, violence
and unlawful means, but action to that end, is clear.

															For present purposes, we may and do assume that freedom of
speech and of the press which are protected by the First Amendment
from abridgment 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. We do not
regard the incidental statement in Prudential Ins. Co. v.
Cheek, 259 U. S. 530 , 259 U. S. 543 ,
that the Fourteenth Amendment imposes no restrictions on the States
concerning freedom of speech, as determinative of this question.
[ Footnote 9 ]

															It is a fundamental principle, long established, that the
freedom of speech and of the press which is secured by the
Constitution does not confer an absolute right to speak or publish,
without responsibility, whatever one may choose, or an unrestricted
and unbridled license that gives immunity for every possible use of
language and prevents the punishment of those who abuse this
freedom. 2 Story on the Constitution, 5th ed., § 1580, p. 634; Robertson v. Baldwin, 165 U. S. 275 , 165 U. S. 281 ; Patterson v. Colorado, 205 U. S. 454 , 205 U. S. 462 ; Fox v.
Washington , 236 Page 268 U. S. 667 U.S. 273, 236 U. S. 276 ; Schenck v. United States, 249 U. S.
47 , 249 U. S. 52 ; Frohwerk v. United States, 249 U.
S. 204 , 249 U. S. 206 ; Debs v. United States, 249 U. S. 211 , 249 U. S. 213 ; Schaefer v. United States, 251 U.
S. 466 , 251 U. S. 474 ; Gilbert v. Minnesota, 254 U. S. 325 , 254 U. S. 332 ; Warren v. United States, (C.C.A.) 183 Fed. 718, 721.
Reasonably limited, it was said by Story in the passage cited, this
freedom is an inestimable privilege in a free government; without
such limitation, it might become the scourge of the republic.

															That a State in the exercise of its police power may punish
those who abuse this freedom by utterances inimical to the public
welfare, tending to corrupt public morals, incite to crime, or
disturb the public peace, is not open to question. Robertson v.
Baldwin, supra, p. 165 U. S. 281 ; Patterson v. Colorado, supra, p. 205 U. S. 462 ; Fox v. Washington, supra, p. 236 U. S. 277 ; Gilbert v. Minnesota, supra, p. 254 U. S. 339 ; People v. Most, 171 N.Y. 423, 431; State v. Holm, 139 Minn. 267, 275; State v. Hennessy, 114 Wash. 351, 359; State v. Boyd, 86 N.J.L. 75, 79; State v. McKee, 73 Conn. 18, 27. Thus, it was held by this Court in the Fox Case that a State may punish publications advocating
and encouraging a breach of its criminal laws; and, in the Gilbert Case, that a State may punish utterances teaching
or advocating that its citizens should not assist the United States
in prosecuting or carrying on war with its public enemies.

															And, for yet more imperative reasons, a State may punish
utterances endangering the foundations of organized government and
threatening its overthrow by unlawful means. These imperil its own
existence as a constitutional State. Freedom of speech and press,
said Story ( supra ) does not protect disturbances to the
public peace or the attempt to subvert the government. It does not
protect publications or teachings which tend to subvert or imperil
the government or to impede or hinder it in the performance of its
governmental duties. State v. Page 268 U. S. 668 Holm, supra, p. 275. It does not protect publications
prompting the overthrow of government by force; the punishment of
those who publish articles which tend to destroy organized society
being essential to the security of freedom and the stability of the
State. People v. Most, supra, pp. 431, 432. And a State
may penalize utterances which openly advocate the overthrow of the
representative and constitutional form of government of the United
States and the several States, by violence or other unlawful means. People v. Lloyd, 304 Ill. 23, 34. See also State v.
Tachin, 92 N.J.L. 269, 274, and People v. Steelik, 187 Cal. 361, 375. In short, this freedom does not deprive a State
of the primary and essential right of self-preservation, which, so
long as human governments endure, they cannot be denied. Turner
v. Williams, 194 U. S. 279 , 194 U. S. 294 .
In Toledo Newspaper Co. v. United States, 247 U.
S. 402 , 247 U. S. 419 ,
it was said:

															"The safeguarding and fructification of free and constitutional
institutions is the very basis and mainstay upon which the freedom
of the press rests, and that freedom, therefore, does not and
cannot be held to include the right virtually to destroy such
institutions."

															By enacting the present statute, the State has determined,
through its legislative body, that utterances advocating the
overthrow of organized government by force, violence and unlawful
means are so inimical to the general welfare and involve such
danger of substantive evil that they may be penalized in the
exercise of its police power. That determination must be given
great weight. Every presumption is to be indulged in favor of the
validity of the statute. Mugler v. Kansas, 123 U.
S. 623 , 123 U. S. 661 .
And the case is to be considered "in the light of the principle
that the State is primarily the judge of regulations required in
the interest of public safety and welfare;" and that its police

															"statutes may only be declared unconstitutional where they are
arbitrary or unreasonable Page 268 U. S. 669 attempts to exercise authority vested in the State in the public
interest." Great Northern Ry. v. Clara City, 246 U.
S. 434 , 246 U. S. 439 .
That utterances inciting to the overthrow of organized government
by unlawful means present a sufficient danger of substantive evil
to bring their punishment within the range of legislative
discretion is clear. Such utterances, by their very nature, involve
danger to the public peace and to the security of the State. They
threaten breaches of the peace, and ultimate revolution. And the
immediate danger is none the less real and substantial because the
effect of a given utterance cannot be accurately foreseen. The
State cannot reasonably be required to measure the danger from
every such utterance in the nice balance of a jeweler's scale. A
single revolutionary spark may kindle a fire that, smouldering for
a time, may burst into a sweeping and destructive conflagration. It
cannot be said that the State is acting arbitrarily or unreasonably
when, in the exercise of its judgment as to the measures necessary
to protect the public peace and safety, it seeks to extinguish the
spark without waiting until it has enkindled the flame or blazed
into the conflagration. It cannot reasonably be required to defer
the adoption of measures for its own peace and safety until the
revolutionary utterances lead to actual disturbances of the public
peace or imminent and immediate danger of its own destruction; but
it may, in the exercise of its judgment, suppress the threatened
danger in its incipiency. In People v. Lloyd, supra, p.
35, it was aptly said:

															"Manifestly, the legislature has authority to forbid the
advocacy of a doctrine designed and intended to overthrow the
government without waiting until there is a present and imminent
danger of the success of the plan advocated. If the State were
compelled to wait until the apprehended danger became certain, then
its right to protect itself would come into being simultaneously
with the overthrow of the government, when there Page 268 U. S. 670 would be neither prosecuting officers nor courts for the
enforcement of the law."

															We cannot hold that the present statute is an arbitrary or
unreasonable exercise of the police power of the State
unwarrantably infringing the freedom of speech or press, and we
must and do sustain its constitutionality.

															This being so, it may be applied to every utterance -- not too
trivial to be beneath the notice of the law -- which is of such a
character and used with such intent and purpose as to bring it
within the prohibition of the statute. This principle is
illustrated in Fox v. Washington, supra, p. 236 U. S. 277 ; Abrams v. United States, 250 U. S. 616 , 250 U. S. 624 ; Schaefer v. United States, supra., pp. 251 U. S. 479 , 251 U. S. 480 ; Pierce v. United States, 252 U. S. 239 , 252 U. S. 250 , 252 U. S. 251 ;
[ Footnote 10 ] and Gilbert v. Minnesota, supra, p. 254 U. S. 333 .
In other words, when the legislative body has determined generally,
in the constitutional exercise of its discretion, that utterances
of a certain kind involve such danger of substantive evil that they
may be punished, the question whether any specific utterance coming
within the prohibited class is likely, in and of itself, to bring
about the substantive evil is not open to consideration. It is
sufficient that the statute itself be constitutional and that the
use of the language comes within its prohibition.

															It is clear that the question in such cases is entirely
different from that involved in those cases where the statute
merely prohibits certain acts involving the danger of substantive
evil, without any reference to language itself, and it is sought to
apply its provisions to language Page 268 U. S. 671 used by the defendant for the purpose of bringing about the
prohibited results. There, if it be contended that the statute
cannot be applied to the language used by the defendant because of
its protection by the freedom of speech or press, it must
necessarily be found, as an original question, without any previous
determination by the legislative body, whether the specific
language used involved such likelihood of bringing about the
substantive evil as to deprive it of the constitutional protection.
In such cases, it has been held that the general provisions of the
statute may be constitutionally applied to the specific utterance
of the defendant if its natural tendency and probable effect was to
bring about the substantive evil which the legislative body might
prevent. Schenck v. United States, supra, p. 249 U. S. 51 ; Debs v. United States, supra., pp. 249 U. S. 215 , 249 U. S. 216 .
And the general statement in the Schenck Case (p. 249 U. S. 52 )
that the

															"question in every case is whether the words are used in such
circumstances and are of such a nature as to create a clear and
present danger that they will bring about the substantive
evils"

															-- upon which great reliance is placed in the defendant's
argument -- was manifestly intended, as shown by the context, to
apply only in cases of this class, and has no application to those
like the present, where the legislative body itself has previously
determined the danger of substantive evil arising from utterances
of a specified character.

															The defendant's brief does not separately discuss any of the
rulings of the trial court. It is only necessary to say that,
applying the general rules already stated, we find that none of
them involved any invasion of the constitutional rights of the
defendant. It was not necessary, within the meaning of.the statute,
that the defendant should have advocated "some definite or
immediate act or acts" of force, violence or unlawfulness. It was
sufficient if such acts were advocated in general terms, and it was
not essential that their immediate execution should Page 268 U. S. 672 have been advocated. Nor was it necessary that the language
should have been "reasonably and ordinarily calculated to incite
certain persons" to acts of force, violence or unlawfulness. The
advocacy need not be addressed to specific persons. Thus, the
publication and circulation of a newspaper article may be an
encouragement or endeavor to persuade to murder, although not
addressed to any person in particular. Queen v. Most, L.R., 7 Q.B.D. 244.

															We need not enter upon a consideration of the English common law
rule of seditious libel or the Federal Sedition Act of 1798, to
which reference is made in the defendant's brief. These are so
unlike the present statute that we think the decisions under them
cast no helpful light upon the questions here.

															And finding, for the reasons stated, that the statute is not, in
itself, unconstitutional, and that it has not been applied in the
present case in derogation of any constitutional right, the
judgment of the Court of Appeals is Affirmed. [ Footnote 1 ]

															Laws of 1909, ch. 88; Consol.Laws, 1909, ch. 40. This statute
was originally enacted in 1902. Laws of 1902, ch. 371.

															[ Footnote 2 ]

															Italics are given as in the original, but the paragraphing is
omitted.

															" The Left Wing Manifesto" " Issued on Authority of the Conference by
the " " National Council of the Left Wing " "The world is in crisis. Capitalism, the prevailing system of
society, is in process of disintegration and collapse. . . .
Humanity can be saved from its last excesses only by the Communist
Revolution. There can now be only the Socialism which is one in
temper and purpose with the proletarian revolutionary struggle. . .
. The class struggle is the heart of Socialism. Without strict
conformity to the class struggle, in its revolutionary
implications, Socialism becomes either sheer Utopianism, or a
method of reaction. . . . The dominant Socialism united with the
capitalist governments to prevent a revolution. The Russian
Revolution was the first act of the proletariat against the war and
Imperialism. . . . [The] proletariat, urging on the poorer
peasantry, conquered power. It accomplished a proletarian
revolution by means of the Bolshevik policy of 'all power to the
Soviets,' -- organizing the new transitional state of proletarian
dictatorship. . . . Moderate Socialism affirms that the bourgeois,
democratic parliamentary state is the necessary basis for the
introduction of Socialism. . . . Revolutionary Socialism, on the
contrary, insists that the democratic parliamentary state can never
be the basis for the introduction of Socialism; that it is
necessary to destroy the parliamentary state, and construct a new
state of the organized producers, which will deprive the
bourgeoisie of political power, and function as a revolutionary
dictatorship of the proletariat. . . . Revolutionary Socialism
alone is capable of mobilizing the proletariat for Socialism, for
the conquest of the power of the state, by means of revolutionary
mass action and proletarian dictatorship. . . . Imperialism is
dominant in the United States, which is now a world power. . . .
The war has aggrandized American Capitalism, instead of weakening
it as in Europe. . . . These conditions modify our immediate task,
but do not alter its general character; this is not the moment of
revolution, but it is the moment of revolutionary struggle. . . .
Strikes are developing which verge on revolutionary action, and in
which the suggestion of proletarian dictatorship is apparent, the
striker-workers trying to usurp functions of municipal government,
as in Seattle and Winnipeg. The mass struggle of the proletariat is
coming into being. . . . These strikes will constitute the
determining feature of proletarian action in the days to come.
Revolutionary Socialism must use these mass industrial revolts to
broaden the strike, to make it general and militant; use the strike
for political objectives, and, finally, develop the mass political
strike against Capitalism and the state. Revolutionary Socialism
must base itself on the mass struggles of the proletariat, engage
directly in these struggles while emphasizing the revolutionary
purposes of Socialism and the proletarian movement. The mass
strikes of the American proletariat provide the material basis out
of which to develop the concepts and action of revolutionary
Socialism. . . . Our "

															brk:

															task . . . is to articulate and organize the mass of the
unorganized industrial proletariat, which constitutes the basis for
a militant Socialism. The struggle for the revolutionary industrial
unionism of the proletariat becomes an indispensable phase of
revolutionary Socialism, on the basis of which to broaden and
deepen the action of the militant proletariat, developing reserves
for the ultimate conquest of power. . . . Revolutionary Socialism
adheres to the class struggle because through the class struggle
alone -- the mass struggle -- can the industrial proletariat secure
immediate concessions and finally conquer power by organizing the
industrial government of the working class. The class struggle is a
political struggle . . . in the sense that its objective is
political -- the overthrow of the political organization upon which
capitalistic exploitation depends, and the introduction of a new
social system. The direct objective is the conquest by the
proletariat of the power of the state. Revolutionary Socialism does
not propose to "capture" the bourgeois parliamentary state, but to
conquer and destroy it. Revolutionary Socialism, accordingly,
repudiates the policy of introducing Socialism by means of
legislative measures on the basis of the bourgeois state. . . . It
proposes to conquer by means of political action . . . in the
revolutionary Marxian sense, which does not simply mean
parliamentarism, but the class action of the proletariat in any form having as its objective the conquest of the
power of the state. . . . Parliamentary action which emphasizes the
implacable character of the class struggle is an indispensable
means of agitation. . . . But parliamentarism cannot conquer the
power of the state for the proletariat. . . . It is accomplished
not by the legislative representatives of the proletariat, but by the mass power of the proletariat in action. The supreme
power of the proletariat inheres in the political mass
strike, in using the industrial mass power of the proletariat
for political objectives. Revolutionary Socialism, accordingly,
recognizes that the supreme form of proletarian political action is the political mass strike. . . . The power of the
proletariat lies fundamentally in its control of the industrial
process. The mobilization of this control in action against the
bourgeois state and Capitalism means the end of Capitalism, the
initial form of the revolutionary mass action that will conquer the
power of the state. . . . The revolution starts with strikes of
protest, developing into mass political strikes and then into
revolutionary mass action for the conquest of the power of the
state. Mass action becomes political in purpose while
extra-parliamentary in form; it is equally a process of revolution
and the revolution itself in operation. The final objective of mass
action is the conquest of the power of the state, the annihilation
of the bourgeois parliamentary state and the introduction of the
transition proletarian state, functioning as a revolutionary
dictatorship of the proletariat. . . . The bourgeois parliamentary
state is the organ of the bourgeoisie for the coercion of the
proletariat. The revolutionary proletariat must, accordingly,
destroy this state. . . . It is therefore necessary that the
proletariat organize its own state for the coercion and
suppression of the bourgeoisie. . . . Proletarian dictatorship
is a recognition of the necessity for a revolutionary state to
coerce and suppress the bourgeoisie; it is equally a recognition of
the fact that, in the Communist reconstruction of society, the
proletariat as a class alone counts. . . . The old machinery of the
state cannot be used by the revolutionary proletariat. It must be
destroyed. The proletariat creates a new state, based directly upon
the industrially organized producers, upon the industrial unions or
Soviets, or a combination of both. It is this state alone,
functioning as a dictatorship of the proletariat, that can realize
Socialism. . . . While the dictatorship of the proletariat performs
its negative task of crushing the old order, it

															brk:

															performs the positive task of constructing the new. Together
with the government of the proletarian dictatorship, there is
developed a new "government," which is no longer government in the
old sense, since it concerns itself with the management of
production, and not with the government of persons. Out of workers'
control of industry, introduced by the proletarian dictatorship,
there develops the complete structure of Communist Socialism --
industrial self-government of the communistically organized
producers. When this structure is completed, which implies the
complete expropriation of the bourgeoisie economically and
politically, the dictatorship of the proletariat ends, in its place
coming the full and free social and individual autonomy of the
Communist order. . . . It is not a problem of immediate revolution.
It is a problem of the immediate revolutionary struggle. The
revolutionary epoch of the final struggle against Capitalism may
last for years and tens of years; but the Communist International
offers a policy and program immediate and ultimate in scope, that
provides for the immediate class struggle against Capitalism, in
its revolutionary implications, and for the final act of the
conquest of power. The old order is in decay. Civilization is in
collapse. The proletarian revolution and the Communist
reconstruction of society -- the struggle for these -- is now
indispensable. This is the message of the Communist International
to the workers of the world. The Communist International calls the
proletariat of the world to the final struggle!

															[ Footnote 3 ]

															There was testimony at the trial that

															"there was an extended strike at Winnipeg commencing May 15,
1919, during which the production and supply of necessities,
transportation, postal and telegraphic communication and fire and
sanitary protection were suspended or seriously curtailed."

															[ Footnote 4 ]

															195 App.Div. 773, 782, 790.

															[ Footnote 5 ]

															Five judges, constituting the majority of the court, agreed in
this view. 234 N.Y. 132, 138. And the two judges, constituting the
minority -- who dissented solely on a question as to the
construction of the statute which is not here involved -- said in
reference to the Manifesto:

															"Revolution for the purpose of overthrowing the present form and
the established political system of the United States government by
direct means.rather than by constitutional means is therein clearly
advocated and defended. . . ."

															P. 154.

															[ Footnote 6 ]

															Pages 141, 142.

															[ Footnote 7 ]

															Pages 149, 150.

															[ Footnote 8 ]

															Exceptions to all of these rulings had been duly taken.

															[ Footnote 9 ] Compare Patterson v. Colorado, 205 U.
S. 454 , 205 U. S. 462 ; Twining v. New Jersey, 211 U. S. 78 , 211 U. S. 108 ; Coppage v. Kansas, 236 U. S. 1 , 236 U. S. 17 ; Fox v. Washington, 236 U. S. 273 , 236 U. S. 276 ; Schaefer v. United States, 251 U.
S. 466 , 251 U. S. 474 ; Gilbert v. Minnesota, 254 U. S. 325 , 254 U. S. 338 ; Meyer v. Nebraska, 262 U. S. 390 , 262 U. S. 399 ;
2 Story On the Constitution, 5th Ed., § 1950, p. 698.

															[ Footnote 10 ]

															This reference is to so much of the decision as relates to the
conviction under the third count. In considering the effect of the
decisions under the Espionage Act of 1917 and the amendment of
1918, the distinction must be kept in mind between indictments
under those provisions which specifically punish certain
utterances, and those which merely punish specified acts in general
terms, without specific reference to the use of language.

															MR. JUSTICE HOLMES, dissenting.

															MR. JUSTICE BRANDEIS and I are of 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 , 249 U. S. 52 ,
applies.

															"The question in every case is whether the words used are used
in such circumstances and are of such a nature as to create a clear
and present danger that they will bring about the substantive Page 268 U. S. 673 evils that [the State] has a right to prevent."

															It is true that, in my opinion, this criterion was departed from
in Abrams v. United States, 250 U.
S. 616 , but the convictions that I expressed in that
case are too deep for it to be possible for me as yet to believe
that it and Schaefer v. United States, 251 U.
S. 466 , have settled the law. If what I think the
correct test is applied, it is manifest that there was no present
danger of an attempt to overthrow the government by force on the
part of the admittedly small minority who shared the defendant's
views. It is said that this manifesto was more than a theory, that
it was an incitement. Every idea is an incitement. It offers itself
for belief, and, if believed, it is acted on unless some other
belief outweighs it or some failure of energy stifles the movement
at its birth. The only difference between the expression of an
opinion and an incitement in the narrower sense is the speaker's
enthusiasm for the result. 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. If, in the long
run, the beliefs expressed in proletarian dictatorship are destined
to be accepted by the dominant forces of the community, the only
meaning of free speech is that they should be given their chance
and have their way.

															If the publication of this document had been laid as an attempt
to induce an uprising against government at once, and not at some
indefinite time in the future, it would have presented a different
question. The object would have been one with which the law might
deal, subject to the doubt whether there was any danger that the
publication could produce any result, or in other words, whether it
was not futile and too remote from possible consequences. But the
indictment alleges the publication, and nothing more.