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James Larkin, Benjamin Gitlow, C.E. Ruttenberg and Isaac E. Ferguson were indicted, tried and convicted for the crime of criminal anarchy as defined by sections 160 and 161 of the Penal Law. So far as applicable to this case the sections read as follows:
"§ 160. Criminal anarchy defined. Criminal anarchy
is 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. The advocacy of such doctrine either by word of mouth or writing is a felony.
"§ 161. Advocacy of criminal anarchy. Any person who;
"1. By word of mouth or writing advocates, advises or teaches the duty, necessity or propriety of overthrowing or overturning organized government 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; or,
"2. Prints, publishes, edits, issues or knowingly circulates, sells, distributes or publicly displays any book, paper, document, or written or printed matter in any form, containing or advocating, advising or teaching the doctrine that organized government should be overthrown by force, violence or any unlawful means; * * *
"Is guilty of a felony and punishable by imprisonment for not more than ten years, or by a fine of not more than five thousand dollars, or both."
The offense charged against these defendants of which they have been convicted is that they advised and advocated in a socialist paper known as The Revolutionary Age the overthrow and destruction of this government by revolution, violence and the mass strike.
This court, I think, is agreed that these provisions of the Penal Law are constitutional. The First Amendment to the United States Constitution and section 8 of article I of the New York State Constitution, which secure the freedom and liberty of speech and of the press, do not protect the violation of this liberty or permit attempts to destroy that freedom which the Constitutions have established.
We said in People v. Most (171 N.Y. 423, 431):
"While the right to publish is thus sanctioned and secured, the abuse of that right is excepted from the protection of the Constitution, and authority to provide for and punish such abuse is left to the Legislature. The punishment of those who publish articles which tend to corrupt morals, induce crime or destroy organized society, is essential to the security of freedom and the stability of the state. While all the agencies of government, executive, legislative and judicial, cannot abridge the freedom of the press, the Legislature may control and the courts may punish the licentiousness of the press. * * * Mr. Justice STORY defined the phrase to mean `That every man shall have a right to speak, write and print his opinions upon any subject whatsoever, without any prior restraint, so always, that he does not injure any other person in his rights, person, property or reputation; and so always, that he does not thereby disturb the public peace, or attempt to subvert the government.' (Story's Commentaries on the Constitution, § 1874.) * * * It places no restraint upon the power of the Legislature to punish the publication of matter which is injurious to society according to the standard of the common law. It does not deprive the state of the primary right of self preservation. It does not sanction unbridled license, nor authorize the publication of articles prompting the commission of murder or the overthrow of government by force. All courts and commentators contrast the liberty of the press with its licentiousness, and condemn as not sanctioned by the constitution of any state, appeals designed to destroy the reputation of the citizen, the peace of society or the existence of the government."
To the same point reference may be made to Patterson v.Colorado (205 U.S. 454, 462); Schenck v. United States
(249 U.S. 47); State v. Fox (71 Wn. 185); State v. Boyd
(86 N.J. Law, 79).
These sections of the Penal Law make the publication of a paper or document advocating and advising that
organized government be overthrown by force, violence or any unlawful means, a felony.
The Constitution, federal or state, does not authorize publications which advocate the assassination of public officials. (People v. Most, supra.) Neither does it authorize publications advocating the destruction of the government by violence or unlawful means.
The legislature of this state, therefore, was within its powers when it enacted sections 160 and 161 of the Penal Law.
It is fair to assume that the legislature had in mind the protection of this state, the states of the Union and of the Union itself. We may fairly assume that the legislature would think of self-preservation rather than the protection of foreign governments. When, therefore, in these sections it used the words "organized government" it must have referred to all organized government in this country, whether it be that of the city, state or nation. To advocate the destruction of the government of the city of New York, or of the state of New York, or of the United States by force or by unlawful means, such as the mass strike, is a violation of these sections of the Penal Law.
As I understand it the majority of this court are agreed,first, upon the constitutionality of these sections of the Penal Law; second, that the sections apply to writings which advocate the destruction of organized government as it exists in this country; third, that The Revolutionary Age, published by the defendant Gitlow, was a violation of this law, in that it advocated the overthrow of this government by violence, or by unlawful means.
A word now as to this Revolutionary Age. What does it advocate? Let it speak for itself. I quote from the original publication which the defendant Gitlow had printed, for which he paid, which circulated to the extent of 6,000 copies, and for which, on the trial, he accepted full responsibility.
The Left Wing of the Socialist Party broke away from the main body of socialists, because the latter desired to bring about the changes in government by parliamentary methods, too moderate, indeed, for the Left Wing. The Left Wing desired to bring about the social state by revolution, overthrow, violence, and so, in this Revolutionary Age, published this manifesto:
"The world is in a crisis. Capitalism, the prevailing system of society, is in the process of disintegration and collapse. Out of its vitals is developing a new social order, the system of Communist Socialism; and the struggle between this new social order and the old is now the fundamental problem of international politics. * * * The forces of production revolt against the fetters Capitalism imposes upon production.
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]
James Larkin, Benjamin Gitlow, C.E. Ruttenberg and Isaac E. Ferguson were indicted, tried and convicted for the crime of criminal anarchy as defined by sections 160 and 161 of the Penal Law. So far as applicable to this case the sections read as follows:
"§ 160. Criminal anarchy defined. Criminal anarchy
is 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. The advocacy of such doctrine either by word of mouth or writing is a felony.
"§ 161. Advocacy of criminal anarchy. Any person who;
"1. By word of mouth or writing advocates, advises or teaches the duty, necessity or propriety of overthrowing or overturning organized government 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; or,
"2. Prints, publishes, edits, issues or knowingly circulates, sells, distributes or publicly displays any book, paper, document, or written or printed matter in any form, containing or advocating, advising or teaching the doctrine that organized government should be overthrown by force, violence or any unlawful means; * * *
"Is guilty of a felony and punishable by imprisonment for not more than ten years, or by a fine of not more than five thousand dollars, or both."
The offense charged against these defendants of which they have been convicted is that they advised and advocated in a socialist paper known as The Revolutionary Age the overthrow and destruction of this government by revolution, violence and the mass strike.
This court, I think, is agreed that these provisions of the Penal Law are constitutional. The First Amendment to the United States Constitution and section 8 of article I of the New York State Constitution, which secure the freedom and liberty of speech and of the press, do not protect the violation of this liberty or permit attempts to destroy that freedom which the Constitutions have established.
We said in People v. Most (171 N.Y. 423, 431):
"While the right to publish is thus sanctioned and secured, the abuse of that right is excepted from the protection of the Constitution, and authority to provide for and punish such abuse is left to the Legislature. The punishment of those who publish articles which tend to corrupt morals, induce crime or destroy organized society, is essential to the security of freedom and the stability of the state. While all the agencies of government, executive, legislative and judicial, cannot abridge the freedom of the press, the Legislature may control and the courts may punish the licentiousness of the press. * * * Mr. Justice STORY defined the phrase to mean `That every man shall have a right to speak, write and print his opinions upon any subject whatsoever, without any prior restraint, so always, that he does not injure any other person in his rights, person, property or reputation; and so always, that he does not thereby disturb the public peace, or attempt to subvert the government.' (Story's Commentaries on the Constitution, § 1874.) * * * It places no restraint upon the power of the Legislature to punish the publication of matter which is injurious to society according to the standard of the common law. It does not deprive the state of the primary right of self preservation. It does not sanction unbridled license, nor authorize the publication of articles prompting the commission of murder or the overthrow of government by force. All courts and commentators contrast the liberty of the press with its licentiousness, and condemn as not sanctioned by the constitution of any state, appeals designed to destroy the reputation of the citizen, the peace of society or the existence of the government."
To the same point reference may be made to Patterson v.Colorado (205 U.S. 454, 462); Schenck v. United States
(249 U.S. 47); State v. Fox (71 Wn. 185); State v. Boyd
(86 N.J. Law, 79).
These sections of the Penal Law make the publication of a paper or document advocating and advising that
organized government be overthrown by force, violence or any unlawful means, a felony.
The Constitution, federal or state, does not authorize publications which advocate the assassination of public officials. (People v. Most, supra.) Neither does it authorize publications advocating the destruction of the government by violence or unlawful means.
The legislature of this state, therefore, was within its powers when it enacted sections 160 and 161 of the Penal Law.
It is fair to assume that the legislature had in mind the protection of this state, the states of the Union and of the Union itself. We may fairly assume that the legislature would think of self-preservation rather than the protection of foreign governments. When, therefore, in these sections it used the words "organized government" it must have referred to all organized government in this country, whether it be that of the city, state or nation. To advocate the destruction of the government of the city of New York, or of the state of New York, or of the United States by force or by unlawful means, such as the mass strike, is a violation of these sections of the Penal Law.
As I understand it the majority of this court are agreed,first, upon the constitutionality of these sections of the Penal Law; second, that the sections apply to writings which advocate the destruction of organized government as it exists in this country; third, that The Revolutionary Age, published by the defendant Gitlow, was a violation of this law, in that it advocated the overthrow of this government by violence, or by unlawful means.
A word now as to this Revolutionary Age. What does it advocate? Let it speak for itself. I quote from the original publication which the defendant Gitlow had printed, for which he paid, which circulated to the extent of 6,000 copies, and for which, on the trial, he accepted full responsibility.
The Left Wing of the Socialist Party broke away from the main body of socialists, because the latter desired to bring about the changes in government by parliamentary methods, too moderate, indeed, for the Left Wing. The Left Wing desired to bring about the social state by revolution, overthrow, violence, and so, in this Revolutionary Age, published this manifesto:
"The world is in a crisis. Capitalism, the prevailing system of society, is in the process of disintegration and collapse. Out of its vitals is developing a new social order, the system of Communist Socialism; and the struggle between this new social order and the old is now the fundamental problem of international politics. * * * The forces of production revolt against the fetters Capitalism imposes upon production. The answer of Capitalism is war; the answer of the proletariat is the Social Revolution and Socialism. * * * The class struggle is the heart of Socialism. * * * But the dominant Socialism accepted the war as a war for democracy — as if democracy under the conditions of Imperialism is not directly counter-revolutionary! It justified the war as a war for national independence — as if Imperialism is not necessarily determined upon annihilating the independence of nations! * * * The dominant Socialism expressed this unity, developing a policy of legislative reforms and State Capitalism, making the revolutionary class struggle a parliamentary process. This development meant, obviously, the abandonment of fundamental Socialism. It meant working on the basis of the bourgeois parliamentary state, instead of the struggle to destroy that state. * * * The proletariat was urged not to make a revolution. The dominant Socialism united with the capitalist governments to prevent a revolution. The Russian Revolution was the first act of the proletariat against the war and Imperialism * * *. But the proletariat, urging on the poorer peasantry, conquered power. It accomplished a proletarian revolution
by means of the Bolshevik policy of `all power to the Soviets,' — * * * Revolutionary socialism, on the contrary, insists that the democratic parliamentary state can never be the basis for the introduction of Socialism; that it is necessary to destroy the parliamentary state, and construct a new state of the organized producers, which will deprive the bourgeoisie of political power, and function as a revolutionary dictatorship of the proletariat. * * * Revolutionary Socialism alone is capable of mobilizing the proletariat for Socialism, for the conquest of the power of the state, by means of revolutionary mass action and proletarian dictatorship. * * * Revolutionary industrial unionism was a recognition * * * that the political state should be destroyed and a new proletarian state of the organized producers constructed in order to realize Socialism. * * * This is not the moment of revolution, but it is the moment of revolutionary struggle. * * * Strikes are developing which verge on revolutionary action, and in which the suggestion of proletarian dictatorship is apparent, the striker-workers trying to usurp functions of municipal government, as in Seattle and Winnipeg. The mass struggle of the proletariat is coming into being. * * * These strikes will constitute the determining feature of proletarian action in the days to come. Revolutionary Socialism must use these mass industrial revolts to broaden the strike, to make it general and militant; use the strike for political objectives, and, finally, develop the mass political strike against Capitalism and the state. * * * The mass strikes of the American proletariat provide the material basis out of which to develop the concepts and action of revolutionary Socialism. * * * The class struggle is a political struggle. * * * The direct objective is the conquest by the proletariat of the power of the state. * * * Revolutionary Socialism, accordingly, proposes to conquer the power of the state. * * * It is accomplished, not by the legislative
representatives of the proletariat, but by the mass power of the proletariat in action. The supreme power of the proletariat inheres in the political mass strike, in using the industrial mass power of the proletariat for political objectives. * * * Actually the forms of the new society are constructed under the protection of a revolutionary proletarian government. * * * The revolution starts with strikes of protest, developing into mass political strikes and then into revolutionary mass action for the conquest of the power of the state. * * * The final objective of mass action is the conquest of the power of the state, the annihilation of the bourgeois parliamentary state and the introduction of the transition proletarian state, functioning as a revolutionary dictatorship of the proletariat. * * * The revolutionary proletariat must, accordingly, destroy this state. * * * The old machinery of the state cannot be used by the revolutionary proletariat. It must be destroyed."
It will be seen from the above excerpts that this defendant through the manifesto of the Left Wing advocated the destruction of the state and the establishment of the dictatorship of the proletariat. The way in which this is to be accomplished is by the use of the mass strike; the strike workers attempting to usurp the functions of municipal government as in Seattle and Winnipeg. The strikes advocated by the defendant were not for any labor purposes or to bring about the betterment of the working man, but solely for political purposes to destroy the state or to seize state power. Mass. strike means the striking or the ceasing to work by concerted action of, and among, all working classes. Thus government and the functions of government are paralyzed and come to an end.
Section 580 of the Penal Law provides that where two or more persons conspire to commit any act injurious to the public health, to public morals or to trade or commerce, or for the perversion or the obstruction of justice or of the due administration of the laws, each of them is
guilty of a misdemeanor. To advocate, therefore, the commission of this conspiracy or action by mass strike whereby government is crippled, the administration of justice paralyzed, and the health, morals and welfare of a community endangered, and this for the purpose of bringing about a revolution in the state, is to advocate the overthrow of organized government by unlawful means.
I think a reading of this Revolutionary Age published by the defendant justifies the conclusion of the jurors and of the court below that the defendant was guilty of the crime charged. To this proposition I understand the majority of this court assents.
It is suggested, however, that error was committed in the admission of evidence which requires a reversal of the judgment. Although I recognize that the sentence may have been heavy for the offense, yet I cannot see wherein any error has been committed.
The article published advocates the mass strike. There is no description of the mass strike. We give to these words the meaning which from experience we know them to have. The courts cannot be blind to or profess ignorance of the things which have recently happened in the world. Mass. strike means the combined strike of all workers in every field of activity or enough of them to accomplish the purpose in view. The mass strike in this article is advocated for the purpose of the political overthrow of the government. It has been accomplished or attempted in particular cities. The article itself says so. "Strikes," so the manifesto reads, "are developing which verge on revolutionary action, and in which the suggestion of proletarian dictatorship is apparent, the striker-workers trying to usurp functions of municipal government, as in Seattle and Winnipeg."
The manifesto advocates the revolution by strikes. The proletariat dictatorship, it says, is apparent because the strike workers are trying to usurp functions of municipal government. The strikes which the defendant and
the manifesto meant and have reference to are the kind of strikes which happened in Seattle and in Winnipeg. This article plainly states that the defendant and his Left Wing are to bring about the proletariat dictatorship by the mass strike which is the kind of strike that was had in Seattle and Winnipeg.
The People in this case through Major Furry Ferguson Montague showed what kind of a strike Winnipeg had. He testified that employees in the various departments of activity refused to work. These consisted of the postmen, teamsters, cooks, waiters, clerks, metal workers, garbage collectors, employees in water and electric light supplies, elevator operators, telephone employees. This witness merely stated what happened in Winnipeg. The effect upon Winnipeg and the people of Winnipeg by reason of this mass strike was excluded. The witness was strictly confined by the learned trial justice to the mere statement that the employees in the various departments went on a strike. This defendant and his Left Wing advocated in the manifesto the overthrow of this government by strikes such as were had in Winnipeg.
Why could not this evidence be introduced? Suppose the manifesto had advocated the ending of President Harding's administration by the same means that ended Garfield's, would not the court take judicial notice of Garfield's assassination, or would the rules of evidence prevent proof that Garfield was shot? The Left Wing Socialists proposed the destruction of this government and the seizure of state power by means of the mass strike. Such a strike, it is written, has happened in Winnipeg. I, for one, cannot see wherein it is incompetent to show what happened in Winnipeg. In fact, so notorious was the strike and suffering in Winnipeg that the court would be justified in taking judicial notice of it. The press was full of it at the time. What the world generally knows a court of justice may be assumed to know.
This manifesto refers to the Soviet government in
Russia. If it advocated the overthrow of this government and the establishment by force of the Soviet government, would it be incompetent for a court of justice to listen to evidence as to the nature of the Soviet government? Cannot the meaning of Soviet government be shown as well as the meaning of any other word used? It is said that this evidence of the Winnipeg strike was very harmful to the defendant. How can that be harmful which he himself has advocated? His paper advocated the overthrow of the government by a mass strike. The evidence of Major Montague showed what a mass strike was. The defendant used words which have a definite meaning and then seeks to escape the consequences when courts give the words the meaning he intends.
But does he seek to escape the meaning? His brief in this court would indicate the contrary. He or his counsel sees in the Winnipeg incident the beneficence of the proletariat dictatorship.
I quote from his brief: "On the side of the manifesto, in spite of inept choice of verbs, the significance given to the Winnipeg strike, was that it represented a new tendency, in that the striker-workers organized themselves in a way to sustain the municipal life as against serious consequences to the residents of the city. The point of the reference is the city-wide organization of the workers — the germ of future `proletarian dictatorship,' or general working-class government — and the use of this organization to carry on social services."
It will be seen from these words that the defendant claims that the manifesto itself showed how the workers of Winnipeg sustained municipal life and that the proletariat government was really a good thing.
Under these circumstances and with this claim the admission of the mere statement that at Winnipeg the workmen in various departments went out, was not only competent, but even if incompetent, not harmful. The reference of the trial judge in his charge to the Winnipeg
strike followed by the question, "Was that a violation of law?" did not amount to error. That the court had reference to such a strike occurring New York state being unlawful is apparent from the references following to our law of conspiracy.
As the majority of this court are of the opinion that the defendant was guilty of the crime charged, and as I personally cannot see any error in the admission of the evidence regarding the Winnipeg strike, I am of the opinion that the judgment of conviction should be affirmed.