In 1919, a New York State Court judge felt strange that a ‘...a young man, 29 years of age, of intelligence, a striking example of the educational system of this country, able-bodied, of full intellect’ advocated for communism. The ‘young man’ was Benjamin Gitlow, the co-founder of the Communist Party of America.
The New York State Court convicted Gitlow of criminal anarchy for publishing copies of the Left-Wing Manifesto in 1919. Among other things, the manisfesto emphasized the necessity of accomplishing the ‘Communist Revolution’ by militant and ‘revolutionary Socialism.’ The Appellate Division and Court of Appeals (New York) upheld the lower court decision.
The matter then reached the U.S. Supreme Court. The Court upheld the conviction, and conspicuously held that the freedom of speech under the U.S. Constitution was not absolute.
28 years later, the Gitlow case found its way into the framing of India’s Constitution. On 4 November 1948, B.R. Ambedkar was faced with criticism from his Constituent Assembly colleagues: why were there restrictions on fundamental rights in the Draft Constitution? Some Assembly members felt that the restrictions effectively nullified the rights and claimed that freedom of speech in the U.S. was real since it was not restricted.
Ambedkar rebuked this comparative point stating that ‘it is wrong to say that fundamental rights in America are absolute’ and quoted from the Gitlow judgement:
‘It is a fundamental principle, long established, that the freedom of speech and of the press, which is secured by the Constitution, does not confer an absolute right to speck or publish, without responsibility, whatever one may chose, or an unrestricted and unbridled license that gives immunity for every possible use of language and prevents the punishment of those who abuse this freedom.’
Ambedkar added that while the U.S. Constitution contained fundamental rights that were absolute, the Court eventually had to step in, as they did in Gitlow, to impose limitations. He claimed the Draft Constitution wanted to avoid this by limiting these rights in the Constitution and keeping the judiciary away from deciding what restrictions apply.
The Assembly appeared convinced with these arguments and in the end, they adopted a fundamental rights chapter - including the freedom of speech provisions with restrictions.