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.

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.

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.

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.

The Supreme Court upheld Gitlow's conviction 7–2, with Louis Brandeis and Oliver W. Holmes dissenting on the grounds that even "indefinite" advocacy of overthrowing government should be protected speech.

"[9] According to Sanford, a "single revolutionary spark may kindle a fire that, smoldering for a time, may burst into a sweeping and destructive conflagration."

"[7] Relying on the argument that incendiary speech may be suppressed “preemptively” Justice Sanford asserted that governments cannot be required to wait until revolutionary publications “lead to actual disturbances of the public peace or imminent and immediate danger of its own destruction” but can “suppress the threatened danger in its incipiency” or “extinguish the spark without waiting until it has enkindled the flame or blazed into the conflagration.”[10] In his dissent, Holmes, the author of Schenck's clear and present danger test, wrote that he believed it was still the appropriate test to employ in judging the limits of freedom of expression.

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.

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."

[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.