Benjamin Gitlow was a member of the left-wing section of the Socialist Party. The New York legislature had passed a law making it a crime to advocate the violent overthrow of the government. Gitlow was arrested and charged with having violated this law by writing, publishing, and distributing a pamphlet called the Left-wing Manifesto. The pamphlet urged the establishment of socialism by strikes and “class action … in any form.” At Gitlow’s trial in a New York court, his famous attorney, Clarence Darrow, argued that the pamphlet was speech and press protected by the First Amendment since it advocated nothing but only urged abstract doctrine. Furthermore, he argued, it did not call for immediate action, but instead called for action at some indefinite time in the future. Even though no evidence was introduced that the pamphlet’s publication had led to any unlawful action, Gitlow was convicted, and then appealed to the Supreme Court.

By a 7-2 vote, with only Justices Oliver Wendell Holmes and Louis Brandeis dissenting, the Supreme Court upheld Gitlow’s conviction. Of great significance, however, the Court, using the “incorporation” doctrine, declared that the freedom of speech and press were “among the fundamental rights and liberties protected by the due process clause of the Fourteenth Amendment from impairment by the states.” Nevertheless, the Court’s majority ruled that “states can punish utterances endangering the foundations of government and threatening its overthrow by unlawful means” because such speech would “present a sufficient danger to the public peace and to the security of the State.” The majority used the analogy of a smoldering campfire that could burst into flame at any time and noted that the state does not have to wait until the fire starts to take action to prevent it.

In their famous dissent, Justices Holmes and Brandeis stuck to the “clear and present danger rule” which Holmes had first enunciated in the 1919 Schenck case. They argued that what they called “the redundant discourse” in the pamphlet had “no chance of starting a present conflagration. Holmes wrote: “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. … 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.”