During the Red Scare of 1919 and 1920, Benjamin Gitlow was convicted under the New York statute forbidding "criminal anarchy." The case was appealed to the Supreme Court, which upheld it, with Justice Sanford writing the majority opinion. Justice Oliver Wendell Holmes wrote a dissent.
Both justices agreed that the Fourteenth Amendment forbade a state from infringing on First Amendment rights of free speech. Sanford, however, regarded Gitlow`s writing in the "Left Wing Manifesto" and "The Revolutionary Age" to have exceeded acceptable limits. There was no real debate over Gitlow`s role in the publication of the documents, nor any doubt that the Left Wing Socialists had parted company with mainstream Socialists and advocated class warfare and revolution.
Sanford reasoned that the words of the Manifesto condemned it:
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 ...
Sanford stated the clear majority opinion of the report when he deemed it within the ordinary police power of the state of New York to forbid this.
Justice Holmes demurred, on behalf of himself and Justice Brandeis.
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.
While Sanford represented the opinion of the court at that time, in later years the viewpoint of Justice Holmes came to represent the court`s thinking.