Gitlow v. New York, 268 U.S. 652 (1925), was a landmark decision of the United States Supreme Court holding that the Fourteenth Amendment to the United States Constitution had extended the First Amendment's provisions protecting freedom of speech and freedom of the press to apply to the governments of U.S. states. Along with Chicago, Burlington & Quincy Railroad Co. v. City of Chicago (1897), it was one of the first major cases involving the incorporation of the Bill of Rights. It was also one of a series of Supreme Court cases that defined the scope of the First Amendment's protection of free speech and established the standard to which a state or the federal government would be held when it criminalized speech or writing.

The case arose from the conviction under New York state law of Socialist politician and journalist Benjamin Gitlow for the publication of a "left-wing manifesto" in 1919. In a majority opinion joined by six other justices, Associate Justice Edward Terry Sanford upheld the conviction under the bad tendency test, writing that government may suppress or punish speech that directly advocates the unlawful overthrow of the government. Associate Justice Oliver Wendell Holmes Jr. dissented, arguing that state and federal governments should only be permitted to limit free speech under the "clear and present danger" test that he had previously laid out in Schenck v. United States (1919).

In his majority opinion, Sanford laid out the grounds for incorporation of freedom of speech and freedom of the press, holding that they were among the rights protected by the Due Process Clause of the Fourteenth Amendment. Later Supreme Court cases such as De Jonge v. Oregon (1937) would incorporate other provisions of the Bill of Rights on the same basis as Gitlow.

New York's Criminal Anarchy Law was passed in 1902 following the assassination of President William McKinley by an anarchist in Buffalo, New York, in September 1901.^[1] Under the Criminal Anarchy Law, people seen as activists supporting the destruction of American government through revolutionary means could be arrested in an attempt to prevent American Bolsheviks from gaining a national following.^[2][3]

Following the Red Scare of 1919–20, a variety of leftists, either anarchists, sympathizers with the Bolshevik Revolution, labor activists, or members of a communist or socialist party, were convicted for violating the Espionage Act of 1917 and Sedition Act of 1918 on the basis of their writings or statements. Benjamin Gitlow, a member of the Socialist Party of America, who had served in the New York State Assembly, was charged with criminal anarchy under New York's Criminal Anarchy Law of 1902 for publishing in July 1919 a document called "Left wing manifesto" in The Revolutionary Age, a newspaper for which he served as business manager. Gitlow's trial counsel was renowned defense attorney Clarence Darrow.^[4] His trial lasted from January 22 to February 5, 1920.

His defense contended that the Manifesto represented historical analysis rather than advocacy. Moreover, he claimed that he should not be arrested for his writing since the manifesto's distribution was not the inciting incident for any actions against the government.^[3] The prosecution refuted Gitlow's claim, stating, "Prosecutions have been for the use of words or printed arguments urging actions which if carried out by the reader or hearer would have resulted in the commission of a crime." The prosecution claimed that the Manifesto's intent was to convince American readers to commit crimes, and that in itself should be punishable by law. It took the jury three hours to convict Gitlow on February 11, 1920, and sentenced to 5 to 10 years in prison.^[2] He served more than two years at Sing Sing prison before his motion to appeal was granted and he was released on bail. State courts of appeal upheld his conviction.^[5]

Gitlow was the first major First Amendment case that the American Civil Liberties Union argued before the Supreme Court.^[6]

The Court had to consider whether it could review a challenge to a state law on the basis that it violated the federal constitution. If it determined that such a challenge lay within the scope of its authority, then it had to review the application of the law to the case at hand, the specific violation of the statute.

On November 9, 1925, Gitlow surrendered to New York Authorities for transportation back to Sing Sing Prison to finish his sentence.^[5] On December 11, 1925, New York Gov. Al Smith pardoned him, saying that while Gitlow had been "properly and legally convicted", he needed to consider "whether or not he has been sufficiently punished for a political crime." He concluded that "no additional punishment would act as a deterrent to those who would preach an erroneous doctrine of Government."^[15] Gitlow was later briefly elected General Secretary of the American Communist Party in 1929.^[2]

The Court used the doctrine first enunciated in Gitlow in other cases, such as De Jonge v. Oregon,^[16] Wolf v. Colorado,^[17] and Gideon v. Wainwright,^[18] to extend the reach of the Bill of Rights. Constitutional scholars refer to this as the "incorporation doctrine," meaning that the Supreme Court has identified rights specified in the Bill of Rights and incorporated them into the liberties covered by the due process clause of the Fourteenth Amendment. In 2010, the Supreme Court ruled in McDonald v. Chicago that the 2nd Amendment Right to "keep and bear arms," for lawful purposes such as self-defense is both a fundamental and individual right of all law-abiding Citizens over 21 years of age and of sound mind as self-defense is the "central component" of the 2nd Amendment, and these Rights are "fully applicable" in all of the 50 States.^[19]