The New York Criminal Anarchy Statute Is Not in Violation of Due Process of Law as a Restraint of Freedom of Speech. Conviction of the Author of the "Left Wing Manifesto" Upheld Gitlow v. People of the State of New York. (Supreme Court of the United States, June 8, 1925.) By Section 160 of the Penal Laws of New York, criminal anarchy is defined as "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." By the following section any person who by printed or oral utterance advocates criminal anarchy is declared guilty of felony. Benjamin Gitlow was convicted upon the verdict of the jury of violation of this statute because he drafted, published and distributed the "Left Wing Manifesto" of the Left Wing Socialist Party in 1919. A certificate of reasonable doubt was denied, 183 New York Supplement 846, 2 Law and Labor 263. His conviction was unanimously affirmed by the Appellate Division, 145 Appellate Division 773, 3 Law and Labor 130. This decision was upheld by the New York Court of Appeals, 234 New York 132, 4 Law and Labor 229. Gitlow appealed to the Supreme Court of the United States. That Court in its opinion just rendered summarizes the facts relating to the charges upon which Gitlow was convicted, as follows: "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 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. Employes 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." The Court summarized the purport and meaning of the Manifesto as follows: "Coupled with a review of the rise of Socialism, it 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 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 were cited as instances of a development already verging on revolutionary action and suggestive of proletarian 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." The trial court had left to the jury the question of whether this Manifesto by its meaning and intention amounted to the advocacy of criminal anarchy. Concerning the proper submission of this issue to the jury, the Supreme Court said: "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." Gitlow's contention on appeal to the Supreme Court of the United States that the Criminal Anarchy Statute violated the Federal Constitution was stated by the Supreme Court as follows: "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 casual 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." Discussing the meaning of the Criminal Anarchy Statute, the Court said: "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 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 govthe statute, but the advocacy of action for the accomernment by unlawful means which is denounced by plishment 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. 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 incite ment. The "The means advocated for bringing about the destruction of organized parliamentary government, namely, mass industrial 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." The provision in the First Amendment of the federal Constitution against the infringement of freedom of speech is a limitation upon the United States only and not upon the power of the states. Whether, however, this freedom can be restrained without the possible violation of due process of law required of the states by the Fourteenth Amendment has never been squarely decided. However, the Supreme Court assumed that to be the case, saying: "For present purposes we may and do assume that freedom of speech and of the press-which are protected by the First Amendment from 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. We do not regard the incidental statement in Prudential Ins. Co. v. Cheek, 259 U. S. 530, 543, that the Fourteenth Amendment imposes no restrictions on the States concerning freedom of speech, as determinative of this question." The Court then restated the principle of law laid down by many decisions that the right of freedom of speech does not include the right to incite rebellion in any degree. The Court said: "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. *** 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, *** Thus it was held by is not open to question. 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, 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. *** 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 And of freedom and the stability of the state. * * * 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. *** 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." Concerning the policy of the state of New York in determining what utterances endanger the maintenance of its government and the presumption in favor of the validity of legislation enacted in furtherance of that policy, the Court said: "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. *** 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 And the immediate danger is none the less real and threaten breaches of the peace and ultimate revolution. 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." As to the validity of the New York statute and its application, the Supreme Court said: "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 character and used with such intent and purpose as to bring it within the prohibition of the statute. 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 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. *** And the general statement in the Schenck Case (p. 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. ** "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 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." Mr. Justice Holmes and Mr. Justice Brandeis dissented. Only the Federal District Court for the District in Which the Witness Resides Or Is Found Has Jurisdiction to Compel Attendance Before Railroad Labor Board Robertson v. Railroad Labor Board. (Supreme Court of the United States, June 8, 1925.) The facts and the issue of this case are stated by the Board over him, declined to appear and testify. the Supreme Court as follows: "Transportation Act, 1920, February 28, 1920, c. 91, § 310, par. a, 41 Stat. 456, 472, authorizes the Railroad Labor Board, 'for the efficient administration of the functions vested in' to require by subpoena 'the attendance of any witness . . . from any place in the United. States at any designated place of hearing, and the taking of a deposition before any person having power to administer oaths.' Paragraph b provides: 'In case of failure to comply with any subpoena (to testify) or in case of the contumacy of any witness appearing before the Labor Board, the Board may invoke the aid of any United States district court. Such court may thereupon order the witness to comply with the requirements of such subpoena, or to give evidence touching the matter in question, as the case may be.' "Pursuant to paragraph a, the Board issued a subpoena to Robertson, a citizen and inhabitant of Cleveland, Ohio, commanding him to appear at its offices in Chicago, Illinois, on a day named, to testify concerning a dispute then being enquired into. The subpoena was served upon Robertson at Cleveland by the United States marshal for the Northern District of Ohio. Robertson did not personally attend as commanded. But on the day named he appeared specially by his attorney, and, challenging the jurisdiction of Thereupon this suit was begun by the Board in the federal court for northern Illinois, Eastern Division, pursuant to paragraph b. "The bill prayed that Robertson, the sole defendant, be ordered to appear before the Labor Board 'at a time and place to be fixed by' it and make 'full answer to any and all pertinent questions relating' to the matter under investigation, and for any other proper relief. The court issued, in the form customary in equity, a summons directing the defendant to appear and answer. This summons was likewise served upon Robertson personally at Cleveland by the United States marshal for the Northern District of Ohio. By his attorney he again appeared specially and moved to quash the service on the ground that, being an inhabitant of Ohio and served there, he was not subject to the jurisdiction of the federal court for Illinois. The motion was overruled; Robertson then moved to dismiss the petition for lack of jurisdiction over the subject-matter of the suit; this motion was also overruled; Robertson declined to plead further; and a final decree was entered directing him 'to appear before the Railroad Labor Board, upon due notice by said Board, at a time and place to be designated therein, there to testify, to give evidence and to give full, true and complete answer and response to any and all pertinent and relevant questions then and there propounded to him concerning the subject matter of the enquiry. 3 Fed. (2) 488, [6 Law and Labor 318]. The case is here on appeal under §238 of the Judicial Code, the questions of jurisdiction having been duly certified. Whether the court acquired jurisdiction over Robertson is the only question requiring decision." The Court stated that the question of jurisdiction rested upon the proper meaning of the words "any United States District Court." The Court reviewed other acts in which these words have been used and construed to mean "any United States District Court of competent jurisdiction." The words so construed imply that the court has jurisdiction of the person of the defendant because he is a resident of the district or is found within it. Congress has power to extend the jurisdiction of the District Court to subpoena anybody not found within its limits and in certain cases where the statute aims at conspiracy and two or more defendants will or may be necessary, the power to subpoena persons outside the district has been specifically granted. It has, however, never been heretofor granted except in clear and precise language and in cases where two or more persons might be needed as defendants. Holding that the language used in the Transportation Act did not imply the power of any District Court to summon as witness before the Board a person residing or found in another district, the Court said: language the broad power of compelling a person to come from any place in the United States to any designated place of hearing to furnish evidence. The rethe United States, to comply with such a subpoena fusal of such person, who might be in any district in was obviously a second contingency to be provided for. Unrestricted liberty of venue in invoking the aid of a district court, referred to before, was clearly essential to the complete exercise of the Board's powers and this unrestricted choice cannot subject to undue hardthe effective performance of its functions. Moreover, ship any defendant actually found within the district in which the suit is brought. But no reason is suggested why Congress should have wished to compel every person summoned either to obey the Board's administrative order without question, or to litigate his right to refuse to do so in such district, however remote from his home or temporary residence, as the Board might select. The Interstate Commerce Commission which, throughout thirty-eight years, has dealt in many different ways with most of the railroads of the United States has never exercised, or asserted, or sought to secure for itself, such broad powers. "We are of opinion that by the phrase 'any District Court of the United States' Congress meant any such court of competent jurisdiction.' The phrase 'any court' is frequently used in the federal statutes and has been interpreted under similar circumstances as meaning 'any court of competent jurisdiction.' By the general rule the jurisdiction of a district court in personam has been limited to the district of which the defendant is an inhabitant or in which he can be found. It would be an extraordinary thing if, while guarding so carefully all departure from the general rule, Congress had conferred the exceptional power here invoked upon a board whose functions are purely advisory *** and which enters the district court, not to enforce a substantive right, but in an auxiliary proceeding to secure evidence from one who may be a stranger to the matter with which the Board is dealing. We think it has made no such extension by §310 of Transportation Act, 1920. It is not lightly to be assumed that Congress intended to depart from a long established policy." "As the Railroad Labor Board is charged generally with the adjustment of disputes between carriers and their employes, it may prove desirable to hold hearings at any place within the United States; and power to do so was expressly conferred. The Board may demand answers or the production of documentary evidence from one who attends such a hearing. The contumacy of a witness appearing before the Board in any designated place of hearing was thus one contingency for which it was necessary to make provision. Congress also granted to the Labor Board in explicit Alien Denied Citizenship Because of Membership in I. W. W. In Re Olson. (United States District Court, 4 Federal [2d] 417.) Olson applied for citizenship, admitting his membership in the I. W. W. and his belief in its teachings and principles. In an opinion accompanying the order denying this petition, the Court quoted from the preamble to the constitution of the I. W. W. and referred to excerpts from its literature published in connection with opinions in In Re Dixon and In Re Bernat, 255 Federal 129. The Court then continued: "Petitioner firmly asserts his belief in the principles enunciated by the 'Preamble' and in the teachings and practices of the order. His petition is supported by two witnesses, each of whom express firm belief in the 'Preamble' and in the teachings and practices of the organization. The teachings of the order, its purposes and design, as it relates to organized government, is not conducive to the peace and tranquility of society. The principles are not promotive of stability of government as provided in the United States Constitution, and are not calculated to promote peace and good order, but rather a declaration of warfare between classes of people, and are opposed to the **** very existence of the state, and violence is an economic factor.' 'As a revolutionary organization (it) advocates the use of any and all tactics to get the results sought with the least expenditure of time and energy. The tactics used are determined solely by |