Whitney v. California

274 U.S. 357 (1927), argued 18 Mar. 1926, decided 26 May 1927 by vote of 9 to 0; Sanford for the Court, Brandeis and Holmes concurring. In 1919 California passed a criminal syndicalism law designed to restrict the activities of the Industrial Workers of the World (IWW), a union long active in the state's agricultural fields and lumber camps. The statute prohibited advocacy of changes in the system of industrial ownership or political control.

The first significant prosecution under the law involved Charlotte Anita Whitney, social activist and prominent member of the Socialist party. In late 1919, authorities arrested her for participating in a November convention of the Communist Labor party (CLP), an organization from which she had recently resigned. At Whitney's trial, the prosecution introduced considerable IWW literature in an attempt to tie the organization to the CLP, which had generally endorsed IWW objectives. Whitney did not deny her short‐lived CLP membership, and the jury convicted her solely on that count—a classic example of guilt by association.

Subsequently, the U.S. Supreme Court unanimously upheld the California statute on the basis of the state's power to protect the public from violent political action. However, in his concurrence, Justice Louis Brandeis, joined by Justice Oliver Wendell Holmes, contended that Whitney's attorneys should have argued for a clear and present danger test to distinguish between membership and dangerous action. They reasoned that the liberty protection of the Fourteenth Amendment Due Process Clause joined with the First Amendment to protect freedom of assembly from state regulation (see Incorporation Doctrine).

The Brandeis concurrence became an important step in the Court's eventual acceptance of the clear and present danger test. In Brandenburg v. Ohio (1969), the Supreme Court overturned Whitney, but a modified version of the law remains in force.

See also Assembly and Association, Citizenship, Freedom of; Due Process, Substantive; Speech and the Press.

— Carol E. Jenson

• 274 U.S. 357 (1927)
• Vote: 9–0
• For the Court: Sanford
• Concurring: Brandeis and Holmes

Charlotte Anita Whitney was a socialist who helped to found the Communist Labor Party (CLP), an organization dedicated to bringing about fundamental changes in the political and economic systems of the United States, by violent means if necessary. The ultimate goal of the CLP was public ownership of the means of production of goods and services and a redistribution of wealth to benefit the masses of workers. California police arrested Whitney because of her socialist and CLP activities.

The state charged Whitney with violating the California Criminal Syndicalism Act of 1919. According to this law, criminal syndicalism was defined as “advocating, teaching or aiding… sabotage … or unlawful acts of force and violence… as a means of accomplishing a change in industrial ownership or control, or effecting any political change."

Whitney was tried and convicted solely on the basis of her involvement with the CLP, an organization that advocated the use of violent revolution to bring about social changes.

The Issue

At first, the Supreme Court refused to hear the Whitney case on the grounds that no federal issue was involved. But Whitney's attorneys proved that in the California Court of Appeals, questions had been raised about possible conflicts of the California Criminal Syndicalism Act with the due process and equal protection clauses of the 14th Amendment. So the Supreme Court accepted the case.

Did the California law used to convict Charlotte Anita Whitney violate her 14th Amendment rights? Moreover, did it also violate her 1st Amendment right of free speech as applied to the states through the due process clause of the 14th Amendment?

Opinion of the Court

The Court upheld the California Criminal Syndicalism Act. Justice Edward Sanford concluded that the state's power and duty to maintain public safety and order outweighed the claims of the defendant about protection of her individual rights.

In his concurring opinion, Justice Louis D. Brandeis argued that Whitney's attorneys should have used the “clear and present danger” doctrine, developed in preceding cases by Brandeis and Oliver Wendell Holmes, to distinguish between mere expression of ideas and ideas that would result in actions that would endanger public safety and order. Whitney had claimed that the California law violated the U.S. Constitution, but, said Brandeis, “she did not claim that it was void because there was no clear and present danger of serious evil” that would result from her speech and actions. This version of the “clear and present danger” doctrine had been expressed by Justice Oliver Wendell Holmes in Abrams v. United States (1919).

Justice Brandeis set forth an often-quoted statement about the latitude and limits of free speech:

[A]lthough the rights of free speech and assembly are fundamental, they are not in their nature absolute. Their exercise is subject to restriction, if the particular restriction proposed is required to protect the State from destruction or from serious injury, political, economic, or moral.…[T]o justify suppression of free speech there must be reasonable ground to fear that serious evil will result if free speech is practiced.…[N]o danger flowing from speech can be deemed clear and present unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehoods and fallacies, to avert the evil by the process of education, the remedy to be applied is more speech, not enforced silence. Only an emergency can justify repression. Such must be the rule if authority is to be reconciled with freedom. Such, in my opinion, is the command of the Constitution. It is therefore always open to Americans to challenge a law abridging free speech and assembly by showing that there was no emergency justifying it.

Significance

Justice Brandeis's concurring opinion has the tone of a dissent. It immediately influenced the life of Charlotte Anita Whitney. The California governor, C. C. Young, pardoned her only a few months after the Supreme Court decision; he gave reasons similar to the ideas in Justice Brandeis's opinion.

In 1969 the Supreme Court overturned the Whitney decision in its ruling in Brandenburg v. Ohio. The ideas of Justice Brandeis influenced the Court's reasoning in this case; it pointed out a defense of free speech rights that could have prevailed for Whitney, if only she and her attorney had used this line of reasoning to support her case.

See also Abrams v. United States; Brandenburg v. Ohio; Freedom of speech and press

Whitney v. California
Supreme Court of the United States
Argued October 6, 1925 Reargued March 18, 1926 Decided May 16, 1927
Full case name	Charlotte Anita Whitney v. People of the State of California
Citations	274 U.S. 357 (more) 47 S. Ct. 641; 71 L. Ed. 1095; 1927 U.S. LEXIS 1011
Prior history	Defendant convicted, Superior Court of Alameda County, California; affirmed, 207 P. 698 (Cal. Ct.App, 1922); review denied, Supreme Court of California, 6-24-22; dismissed for want of jurisdiction, 269 U.S. 530 (1925); rehearing granted, 269 U.S. 538 (1925)
Subsequent history	None
Holding
Defendant's conviction under California's criminal syndicalism statute for membership in the Communist Labor Party did not violate her free speech rights as protected under the Fourteenth Amendment, because states may constitutionally prohibit speech tending to incite to crime, disturb the public peace, or threaten the overthrow of government by unlawful means.
Court membership
Chief Justice William H. Taft Associate Justices Oliver W. Holmes, Jr. · Willis Van Devanter James C. McReynolds · Louis Brandeis George Sutherland · Pierce Butler Edward T. Sandford · Harlan F. Stone
Case opinions
Majority	Sanford, joined by Taft, Van Devanter, McReynolds, Sutherland, Butler, Stone
Concur/dissent	Brandeis, joined by Holmes
Laws applied
U.S. Const. amend. XIV; California Criminal Syndicalism Act
Overruled by
Brandenburg v. Ohio, 395 U.S. 444 (1969)

Whitney v. California, 274 U.S. 357 (1927), was a United States Supreme Court decision upholding the conviction of an individual who had engaged in speech that raised a threat to society.

Contents 1 Facts 2 Result 3 The Brandeis concurrence 4 Quotes 5 See also 6 References 7 Further reading 8 External links

Facts

Anita Whitney, a member of a distinguished California family, was convicted under the state's 1919 Criminal Syndicalism Act for allegedly helping to establish the Communist Labor Party, a group the state charged was devoted to teaching the violent overthrow of government. Whitney claimed that it had not been her intention, nor that of other organizers, that the party become an instrument of violence.

Result

The question before the court was whether the 1919 Criminal Syndicalism Act of California violated the Fourteenth Amendment’s “due process” and “equal protection” clauses. The Court, by a 9-0 vote, held that it did not and upheld Miss Whitney's conviction. Justice Sanford wrote for the seven-justice majority opinion, and invoked the Holmes test of "clear and present danger" but went further. The state, he declared, has the power to punish those who abuse their rights to speech "by utterances inimical to the public welfare, tending to incite crime, disturb the public peace, or endanger the foundations of organized government and threaten its overthrow." In other words, if words have a "bad tendency" they can be punished.

The Brandeis concurrence

The Whitney case is most noted for Justice Louis D. Brandeis's concurrence, which many scholars have lauded as perhaps the greatest defense of freedom of speech ever written by a member of the high court.^[1] (Justice Brandeis and Justice Holmes concurred in the result because of the Fourteenth Amendment questions, but there is no question that the sentiments are a distinct dissent from the views of the prevailing majority and supported the First Amendment.)

Holmes in Abrams had been willing to defend speech on abstract grounds, believing that unpopular ideas should have their opportunity to compete in the "marketplace of ideas." But Brandeis had a much more specific reason for defending speech, and the power of his opinion derives from the connection he made between free speech and the democratic process. Citizens have an obligation to take part in the governing process, and they can only fulfill this obligation if they can discuss and criticize governmental policy fully and without fear. If the government can punish unpopular views, then it cramps freedom, and in the long run, will strangle democratic processes. Thus, free speech is not only an abstract virtue, but a key element that lies at the heart of a democratic society.

Implicitly, Brandeis here moves far beyond the clear and present danger test, and he insists on what some have called a "time to answer" test: no danger flowing from speech can be considered clear and present if there is full opportunity for discussion. While upholding full and free speech, Brandeis tells legislatures that while they have a right to curb truly dangerous expression, they must define clearly the nature of that danger. Mere fear of unpopular ideas will not do.

Justice William O. Douglas believed that had Brandeis lived longer, he would have abandoned the clear and present danger test; Whitney is in fact the precursor to the position Douglas and Hugo L. Black would take in the 1950s and 1960s, that freedom of speech is absolutely protected under the First Amendment. Brandeis does not go that far here, and his views were ultimately adopted by the Court in Brandenburg v. Ohio, 395 U.S. 444 (1969), which explicitly overruled Whitney.

Of note, Miss Whitney was later pardoned by the Governor of California based on Justice Brandeis' concurring opinion.

Quotes

• "[A legislative declaration] does not preclude enquiry into the question whether, at the time and under the circumstances, the conditions existed which are essential to validity under the Federal Constitution. . . . Whenever the fundamental rights of free speech and assembly are alleged to have been invaded, it must remain open to a defendant to present the issue whether there actually did exist at the time a clear danger; whether the danger, if any, was imminent; and whether the evil apprehended was one so substantial as to justify the stringent restriction interposed by the legislature." Justice Louis Brandeis in the Whitney opinion.^[2]
• "Every denunciation of existing law tends in some measure to increase the probability that there will be violation of it. Condonation of a breach enhances the probability. Expressions of approval add to the probability. Propagation of the criminal state of mind by teaching syndicalism increases it. Advocacy of lawbreaking heightens it still further. But even advocacy of violation, however reprehensible morally, is not a justification for denying free speech where the advocacy falls short of incitement..."

See also

• Schenck v. United States, 249 U.S. 47 (1919)
• Abrams v. United States, 250 U.S. 616 (1919)
• Dennis v. United States, 341 U.S. 494 (1951)
• Brandenburg v. Ohio, 395 U.S. 444 (1969)

References

1. ^ Lewis, Anthony (1991). Make No Law: The Sullivan case and the First Amendment. New York: Random House. pp. 85. ISBN 039458774X. 
2. ^ Quoted in the opinion of Landmark Communications v. Virginia, 435 U.S. 829 (1978), 844.

Further reading

• Blasi, Vincent (1988). "The First Amendment and the Ideal of Civil Courage: The Brandeis Opinion in Whitney v. California". William and Mary Law Review 29: 653. 
• Collins, Ronald K. L.; Skover, David (2005). "Curious Concurrence: Justice Brandeis' Vote in Whitney v. California". Supreme Court Review 2005: 333. 
• Dee, Juliet (2003). "Whitney v. California". in Parker, Richard A. (ed.). Free Speech on Trial: Communication Perspectives on Landmark Supreme Court Decisions. Tuscaloosa, AL: University of Alabama Press. pp. 36–51. ISBN 081731301X. 
• Emerson, Thomas (1970). The System of Freedom of Expression. New York: Random. 
• Kalven, Harry, Jr. (1988). A Worthy Tradition: Freedom of Speech in America. New York: Harper & Row. ISBN 0060158107. 
• Preston, William (1994). Aliens and Dissenters: Federal Suppression of Radicals, 1903-1933 (2nd ed.). Urbana: University of Illinois Press. ISBN 0252064526. 
• Renshaw, Patrick (1967). The Wobblies: The Story of Syndicalism in the United States. Garden City, NY: Doubleday. 
• Strum, Philippa (1993). Brandeis: Beyond Progressivism. Lawrence: University Press of Kansas. ISBN 0700606033. 
• Tushnet, Mark (2008). I dissent: Great Opposing Opinions in Landmark Supreme Court Cases. Boston: Beacon Press. pp. 93–100. ISBN 9780807000366. 

External links

• Works related to Whitney v. California at Wikisource
• Text of Whitney v. California, 274 U.S. 357 (1927) is available from:  · Enfacto · Findlaw

• First Amendment Library entry on Whitney v. California

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