The Time to Kill a Snake: Gitlow k. New York and the Bad-Tendency Doctrine MARC LENDLER This statute is a preventive measure. It is intended to head offthese mad and cruel men at the beginning of their careers. It is intended to put out a fire with a bucket of water which might not later on yield to the contents of the reservoir. —William MacAdoo, presiding judge at Benjamin Gitlow’s arraignment The brief for the plaintiff-in-error contains a very interesting discussion—much of it historical, much of it philosophical—of the right of free speech. We shall not address that question at all. —State’s Briefto Supreme Court, Gitlow v. New York On January 30, 1920, Benjamin Gitlow went on trial in New York City, one of five early American Communists charged under the state’s criminal anarchy law. Gitlow’s case eventually wound up in the Supreme Court, which in June 1925 upheld his conviction. Gitlow v. New York is best known as the case in which the Supreme Court began the process of “incorporation”—applying the Bill of Rights to the states. But the Gitlow case also contains some ofthe most compelling debate about the “bad tendency principle”—that a speaker is responsible for the reasonable, probable out come of his words, regardless of how likely it is that the words will lead to a criminal act. This article will focus on that part of the Git low case, rather than its better known role in incorporation. Gitlow was among a group of Socialist party activists who, inspired by the October Revolution in Russia, envisioned a similarpath to power in the United States. In the sum mer of 1919, a conference of the left wing of the Socialist party met to plan the creation 12 JOURNAL OF SUPREME COURT HISTORY of a Leninist-style party. Unable to agree on when and how a party should be created, the conferees did put out a statement of purpose and intentions called the “Left Wing Mani festo.” The Manifesto criticized the “moder ate, petite-bourgeois socialism” of the older Socialist party leaders who made the “revo lutionary class struggle a parliamentary pro cess” as opposed to the “uncompromising pro letarian struggle for socialism.”1 The goal of the left wing was to encourage “mass political strikes against capitalism and the state,” as ex emplified by recent general strikes in Seattle and Winnipeg. “Mass action becomes political in purpose while extra-parliamentary in form; it is equally a process ofrevolution and the rev olution itselfin operation,” said the Manifesto. Written in transliterated Bolshevese, the “Left Wing Manifesto” was virtually unread able for anyone not saturated in the terms of debates on the left.2 But it did have one avid non-Socialist reader—Archibald Steven son, special counsel for the Lusk Committee, set up by the New York legislature to investi gate leftist activity in the state. Stevenson be lieved that there was a basis for prosecuting so cialists, Communists, and anarchists under the state’s criminal-anarchy law, passed in 1902 after the assassination of President William McKinley by deranged sometime-anarchist Leon Czogolz. The law made advocacy of “the doctrine that organized government must be overthrown by force or violence ... or by any unlawful means” a felony.3 The purpose of the law was to make pernicious doctrines criminal before any consequences occurred or were even seen likely to occur. An appeal brief for the state in Gitlow pointed out that the motivation of the law was the frustration New York authorities felt with their inability to prosecute anarchist orator Emma Goldman, whose lectures Czogolz had attended, for the McKinley assassination.4 The criminalanarchy law was written to provide a basis for those prosecutions in the future, and Stevenson recommended it be used against these aspiring American Bolsheviks.5 The motivation of the criminal-anarchy law was the frustration New York authorities felt at their inability to prosecute anarchist orator Emma Goldman (pic tured), whose lectures Leon Czogolz had attended, before his assassination of President McKinley. At a celebration of the second anniver sary of the Russian Revolution in New York, Gitlow was arrested along with...
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