Gitlow v. New York

268 U.S. 652 (1925)

Dissenting Opinion by Justice Holmes

Justice Holmes’ dissent in Gitlow expounded upon the themes introduced in his Abrams dissent. This is another rhetorical tour de force. Perhaps most memorably, Holmes reworked the fire metaphor he made famous in Schenck:

“It is said that this manifesto was more than a theory, that it was an incitement. 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.”

Here Holmes emphasizes his view that suppression and punishment for speech requires an immediate incitement. Since he does not directly cite his prior dissents, the map shows the connection to his earlier dissent via a dotted arrow.

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