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{{Use mdy dates|date=September 2023}}
{{SCOTUSCase
{{Infobox SCOTUS case
|Litigants=Whitney v. California
|Litigants=Whitney v. California
|ArgueDate=October 6
|ArgueDate=October 6
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|USVol=274
|USVol=274
|USPage=357
|USPage=357
|Citation=47 S. Ct. 641; 71 [[Lawyers' Edition|L. Ed.]] 1095; 1927 [[LexisNexis|U.S. LEXIS]] 1011
|ParallelCitations=47 S. Ct. 641; 71 [[Lawyers' Edition|L. Ed.]] 1095; 1927 [[LexisNexis|U.S. LEXIS]] 1011
|Prior=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)
|Prior=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=None
|Subsequent=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 crime, disturb the public peace, or threaten the overthrow of government by unlawful means.
|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 crime, disturb the public peace, or threaten the overthrow of government by unlawful means.
|SCOTUS=1925-1930
|Majority=Sanford
|Majority=Sanford
|JoinMajority=Taft, Van Devanter, McReynolds, Sutherland, Butler, Stone
|JoinMajority=Taft, Van Devanter, McReynolds, Sutherland, Butler, Stone
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|Overruled=''[[Brandenburg v. Ohio]]'', {{ussc|395|444|1969}}
|Overruled=''[[Brandenburg v. Ohio]]'', {{ussc|395|444|1969}}
}}
}}
'''''Whitney v. California''''', 274 U.S. 357 (1927), was a [[Supreme Court of the United States|United States Supreme Court]] decision upholding the conviction of an individual who had engaged in speech that raised a [[clear and present danger]] to society.<ref name=":0">''Whitney v. California'', [https://scholar.google.com/scholar_case?case=9558803063364299687&q=274+U.S.+357+&hl=en&as_sdt=6,39 274 U.S. 357] (S. Ct., 1927).</ref> While the majority of the Supreme Court Justices voted to uphold the conviction, the ruling has become an important [[Freedom of speech|free speech]] precedent due a concurring opinion by Justice [[Louis Brandeis]] recommending new perspectives on criticism of the government by citizens.<ref name=":1">{{Cite web |last=Belpedio |first=James R. |date=15 December 2023 |title=Whitney v. California (1927) |url=https://firstamendment.mtsu.edu/article/whitney-v-california/ |access-date=2024-02-05 |website=The Free Speech Center |language=en-US}}</ref> The ruling was explicitly overruled by ''[[Brandenburg v. Ohio]]'' in 1969.<ref name=":3">''Brandenburg v. Ohio'', [https://scholar.google.com/scholar_case?case=15538842772335942956&q=395+U.S.+444&hl=en&as_sdt=6,39 395 U.S. 444] (S. Ct., 1969).</ref>
'''''Whitney v. California''''', {{ussc|274|357|1927|el=no}}, was a [[Supreme Court of the United States|United States Supreme Court]] decision upholding the conviction of an individual who had engaged in speech that raised a threat to society.


==Background==
==Background==
[[Charlotte Anita Whitney]], a member of a distinguished [[California]] family, was convicted under the 1919 [[California Criminal Syndicalism Act]] for allegedly helping to establish the [[Communist Labor Party of America]], a group charged by the state with teaching the violent overthrow of government.
[[Charlotte Anita Whitney|Anita Whitney]], a member of a distinguished California family, was convicted under the 1919 [[California Criminal Syndicalism Act]] for allegedly helping to establish the [[Communist Labor Party of America]], a group accused by the state of advocating the violent overthrow of the American government. Whitney was arrested in November 1919 after giving a speech in Oakland to attract financial support for the California chapter of the party.<ref>{{cite journal |last=Whitten |first=Woodrow C. |date=March 1969 |title=Criminal Syndicalism and the Law in California: 1919–1927 |journal=Transactions of the American Philosophical Society |volume=59 |issue=2 |page=43-44 |doi=10.2307/1006021 |jstor=1006021}}</ref>


Whitney denied that it had been the intention of her or other organizers for the party to become an instrument of violence. In February 1920, Whitney was tried at the [[Alameda County Superior Court]] and was found guilty of four counts of [[Criminal syndicalism (legal doctrine)|criminal syndicalism]]. She was sentenced to one to fourteen years at [[San Quentin State Prison|San Quentin Penitentiary]], but was released after eleven days upon posting a bond and presenting evidence of poor health.<ref>Whitten, pp. 47-48. </ref> Whitney attempted several appeals within the California state court system, arguing against the applicability of the state's 1919 statute, but without success. Her petition to the [[California Supreme Court]] was denied.<ref>Whitten, pp. 48-52.</ref> Whitney then adopted an argument based on the [[due process]] and [[Equal Protection Clause|equal protection]] clauses of the [[Fourteenth Amendment to the United States Constitution|Fourteenth Amendment to the U.S. Constitution]], claiming that her speech was punished differently than the speech of others due to the subject matter.<ref name=":1" /> Whitney petitioned to the [[Supreme Court of the United States|United States Supreme Court]] to review her criminal conviction, and the high court agreed to hear the case in March 1926.<ref name=":0" />
Whitney denied that it had been the intention of her or other organizers for the party to become an instrument of violence.


==Supreme Court ruling==
==Decision==
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 unanimously upheld Whitney's conviction. Justice Sanford wrote for the seven-justice majority opinion and invoked the [[Oliver Wendell Holmes, Jr.|Holmes]] test of "[[clear and present danger]]" but also went further.
The question before the court was whether the Criminal Syndicalism Act in California violated the [[due process]] and [[Equal Protection Clause|equal protection]] clauses of the [[Fourteenth Amendment to the United States Constitution|Fourteenth Amendment]]. The court unanimously upheld Whitney's criminal conviction, with seven Justices joining the majority opinion and two issuing a [[concurring opinion]].<ref name=":0" /> Justice [[Edward Terry Sanford|Edward T. Sanford]] wrote the majority opinion citing the [[clear and present danger]] test that had been developed by [[Oliver Wendell Holmes Jr.|Oliver Wendell Holmes]] in ''Schenck v. U.S.'' (1919), holding that Whitney's speech in Oakland justified a police response under that test.<ref>''Schenck v. United States'', [https://scholar.google.com/scholar_case?case=8474153321909160293&q=249+U.S.+47+(1919)&hl=en&as_sdt=6,39 249 U.S. 47] (S. Ct., 1919).</ref>


The Court held that the state, in exercise of its [[police power (United States constitutional law)|police power]], has the power to punish those who abuse their rights to freedom of 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, words with a "[[bad tendency]]" can be punished.
Sanford expanded the clear and present danger test to address the specific circumstances and content of Whitney's criminal conviction. The court held that the state, in exercising its [[police power (United States constitutional law)|police power]], has the power to punish those who abuse their rights to freedom of 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, speech with a "[[bad tendency]]" can be punished. Thus, the state's police power toward this type of speech did not conflict with the Fourteenth Amendment.<ref name=":0" /> Whitney's criminal conviction was upheld.<ref name=":1" />


===Brandeis's concurrence ===
===Brandeis's concurrence ===
Since the main question before the Supreme Court involved possible violations of the Fourteenth Amendment, Justices [[Louis Brandeis]] and [[Oliver Wendell Holmes Jr.|Oliver Wendell Holmes]] voted with the majority on that question but considered the unintended ramifications for free speech. Brandeis wrote a concurring opinion, joined by Holmes, that many scholars have lauded as perhaps the greatest defense of [[freedom of speech]] ever written by a member of the Supreme Court.<ref name=":1" /><ref>{{Cite web |last=Serafin |first=Tatiana |date=2018-01-27 |title=Brandeis Concurring With Holmes in Whitney v. California, 1927 |url=https://firstamendmentwatch.org/history-speaks-brandeis-concurring-holmes-whitney-v-california-1927/ |access-date=2024-02-05 |website=First Amendment Watch |language=en-US}}</ref><ref name=":2">{{Cite journal |last=Blasi |first=Vincent |date=Summer 1988 |title=The First Amendment and The Ideal of Civic Courage: The Brandeis Opinion in Whitney v. California |journal=William and Mary Law Review |volume=29 |issue=4 |pages=668-685}}</ref>
The case is most noted for Justice [[Louis Brandeis]]'s [[Concurring opinion|concurrence]], which many scholars have lauded as perhaps the greatest defense of freedom of speech ever written by a member of the high court.<ref>{{cite book |title=Make No Law: The Sullivan case and the First Amendment |last=Lewis |first=Anthony |authorlink= |year=1991 |publisher=Random House |location=New York |isbn=0-394-58774-X |pages=85 }}</ref> Justice Brandeis and Justice [[Oliver Wendell Holmes, Jr.|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.


⚫
Brandeis deviated significantly from prevailing judicial thought on the First Amendment, and applied free speech to the [[Democracy|democratic process]]. He held that citizens have an obligation to take part in the governing process, and they cannot do so unless they can discuss and criticize governmental policy fully and without fear. If the government can punish unpopular views, it cramps freedom. In the long run, that will strangle democratic processes. Thus, [[free speech]] is not only an abstract virtue but also a key element at the heart of a democratic society.<ref name=":2" />
Holmes, in ''[[Abrams v. United States|Abrams]]'', had been willing to defend speech on abstract grounds: that unpopular ideas should have their opportunity to compete in the "[[marketplace of ideas]]." Brandeis, however, 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.


⚫
Brandeis also suggested a reappraisal of the prevailing [[clear and present danger]] test, and insisted 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. Brandeis argued that governments, while having a right to curb truly dangerous expression, must clearly define the nature of that danger. Mere fear of unpopular ideas will not do.<ref name=":4">{{Cite journal |last=Ernst |first=Morris L. |last2=Katz |first2=Arthur Joel |date=May 1953 |title=Speech: Public and Private |journal=Columbia Law Review |volume=53 |issue=5 |pages=624-627 |via=JSTOR}}</ref> In Brandeis's words:<ref name=":0"></ref>
⚫
[[Citizens]] have an obligation to take part in the governing process, and they cannot do so unless they can discuss and criticize governmental policy fully and without fear. If the government can punish unpopular views, it cramps freedom, and in the long run, that will strangle democratic processes. Thus, free speech is not only an abstract virtue but also a key element that lies at the heart of a democratic society.


⚫
{{blockquote|But they [the founding fathers] knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies, and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law -- the argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed.}}
⚫
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:<ref>274 US 376 (1927)</ref>


==Impact and subsequent events==
⚫
{{Cquote|Those who won our independence believed that the final end of the State was to make men free to develop their faculties, and that, in its government, the deliberative forces should prevail over the arbitrary. They valued liberty both as an end, and as a means. They believed liberty to be the secret of happiness, and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that, without free speech and assembly, discussion would be futile; that, with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty, and that this should be a fundamental principle of the American government. They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies, and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law -- the argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed.}}
Shortly after the Supreme Court's ruling, Anita Whitney was pardoned by the Governor of California based on Justice Brandeis' concurring opinion.<ref>{{cite magazine |url=http://www.time.com/time/magazine/article/0,9171,785831,00.html?promoid=googlep|archive-url=https://web.archive.org/web/20121021011322/http://www.time.com/time/magazine/article/0,9171,785831,00.html?promoid=googlep|url-status=dead|archive-date=October 21, 2012|title=Unthinkable | magazine=Time |date=1927-07-04 |access-date=2007-09-26}}</ref> Philippa Strum, oft the [[Woodrow Wilson International Center for Scholars]], asserted that Whitney was a pacifist who believed in working within the American political system. Whitney was, in effect, put on trial for her association with labor groups as well as her own reform activities, which included fighting for equality and advocating for a more equitable political and economic system.<ref>Philippa Strum, ''Speaking Freely: Whitney v. California and American Speech Law'', University Press of Kansas (2015).</ref>


Brandeis's concurrence in the ''Whitney'' ruling eventually became more influential than the majority opinion,<ref>{{Cite journal |last=Collins |first=Ronald K.L |last2=Skover |first2=David M. |date=2005 |title=Curious Concurrence: Justice Brandeis's Vote in Whitney v. California |journal=The Supreme Court Review |volume=2005 |pages=333-336 |via=HeinOnline}}</ref><ref>{{Cite book |last=Dee |first=Juliet |title=Whitney v. California |work= |publisher=University of Alabama Press |year=2003 |isbn=978-0-8173-1301-2 |editor-last=Parker |editor-first=Richard A. |location=Tuscaloosa, AL |pages=36-51 |chapter=Free Speech on Trial: Communication Perspectives on Landmark Supreme Court Decisions}}</ref> and hinted toward the rejection of the [[clear and present danger]] test. This indeed happened by the 1950s-60s, as the American judiciary transitioned to a focus on the risk of [[imminent lawless action]] caused by speech that government officials find inappropriate.<ref>{{Cite web |title=Whitney v. California (1927) |url=https://constitutioncenter.org/the-constitution/supreme-court-case-library/whitney-v-california |access-date=5 February 2024 |website=National Constitution Center}}</ref> This doctrine was solidified by the Supreme Court ruling in ''[[Brandenburg v. Ohio]]'' in 1969, which explicitly overturned ''Whitney v. California'' as a precedent.<ref name=":3" /> Constitutional experts have called Brandeis's concurrence a "milestone" for free speech jurisprudence,<ref name=":1" /> that upholds "the basic stanchion of our society."<ref name=":4" />
==Subsequent jurisprudence and further developments==
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]] took in the 1950s and 1960s, that [[freedom of speech]] is absolutely protected under the [[First Amendment to the United States Constitution|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), in which the U.S. Supreme Court explicitly overruled ''Whitney''.

Whitney was later pardoned by the Governor of California based on Justice Brandeis' concurring opinion.<ref>{{cite news |url=http://www.time.com/time/magazine/article/0,9171,785831,00.html?promoid=googlep|title=Unthinkable | work=Time |date=1927-07-04 |accessdate=2007-09-26}}</ref>

==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 [[freedom of assembly|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.<ref>Quoted in the opinion of ''[[Landmark Communications v. Virginia]]'', {{ussc|435|829|1978}}, 844.</ref>
*"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..."
*"Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches and burnt women. It is the function of speech to free men from the bondage of irrational fears. To justify suppression of free speech, there must be reasonable ground to fear that serious evil will result if free speech is practiced. There must be reasonable ground to believe that the danger apprehended is imminent. There must be reasonable ground to believe that the evil to be prevented is a serious one." Justice [[Louis Brandeis]] in the ''Whitney'' opinion. <ref>''Whitney'', {{ussc|274|357|1927}}, 377</ref>
*"If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the process of education, the remedy to be applied is more speech, not enforced silence." Justice [[Louis Brandeis]] in the ''Whitney'' opinion.<ref>https://scholar.google.com/scholar_case?case=9558803063364299687&hl=en&as_sdt=6&as_vis=1&oi=scholarr</ref>

==Commentary==

Philippa Strum, former director of the Division of United States Studies at the [[Woodrow Wilson International Center for Scholars]], has asserted that Whitney was a pacifist who believed in working within the American political system. According to Strum, the evidence presented at the trial focused on the platform and actions of the [[Industrial Workers of the World]] (IWW), a radical organization to which Whitney had contributed a small amount of money, but of which she was not a member. Whitney was, in effect, put on trial for her association with the IWW as well as her own reform activities, which included fighting for gender and racial equality and advocating a more equitable political and economic system.<ref>Philippa Strum, ''Speaking Freely: Whitney v. California and American Speech Law'', University Press of Kansas (2015).</ref>


==See also==
==See also==
*[[Clear and present danger]]
⚫
*''[[Schenck v. United States]]'', {{ussc|249|47|1919}}
*''[[Dennis v. United States]]'', {{ussc|341|494|1951}}
*[[List of United States Supreme Court cases, volume 274]]
*[[List of United States Supreme Court cases, volume 274]]
⚫
*''[[Brandenburg v. Ohio]]'', {{ussc|395|444|1969}}


==References==
==References==
{{reflist}}
{{reflist}}

==Further reading==
*{{cite journal | last = Blasi | first = Vincent | authorlink = | year = 1988 | title = The First Amendment and the Ideal of Civil Courage: The Brandeis Opinion in ''Whitney v. California'' | journal = William and Mary Law Review | volume = 29 | issue = | pages = 653 | id = | url = | accessdate = | quote = }}
*{{cite journal | last = Collins | first =Ronald K. L. | authorlink = |author2=Skover, David | year = 2005 | title = Curious Concurrence: Justice Brandeis' Vote in ''Whitney v. California'' | journal = Supreme Court Review | volume = 2005 | issue = | pages = 333 | id = | url = | accessdate = | quote = }}
*{{cite book |chapter=Whitney v. California |last=Dee |first=Juliet |title=Free Speech on Trial: Communication Perspectives on Landmark Supreme Court Decisions |editor=Parker, Richard A. (ed.) |year=2003 |publisher=University of Alabama Press |location=Tuscaloosa, AL |isbn=0-8173-1301-X |pages=36&ndash;51 }}
*{{cite book |title=The System of Freedom of Expression |last=Emerson |first=Thomas |authorlink= |year=1970 |publisher=Random |location=New York |isbn= |pages= }}
*{{cite book |title=A Worthy Tradition: Freedom of Speech in America |last=Kalven |first=Harry, Jr. |authorlink= |year=1988 |publisher=Harper &amp; Row |location=New York |isbn=0-06-015810-7 |pages= }}
*{{cite book |title=Aliens and Dissenters: Federal Suppression of Radicals, 1903-1933 |last=Preston |first=William |authorlink= |year=1994 |edition=2nd |publisher=University of Illinois Press |location=Urbana |isbn=0-252-06452-6 |pages= }}
*{{cite book |title=The Wobblies: The Story of Syndicalism in the United States |last=Renshaw |first=Patrick |authorlink= |year=1967 |publisher=Doubleday |location=Garden City, NY |isbn= |pages= }}
*{{cite book |title=Brandeis: Beyond Progressivism |last=Strum |first=Philippa |authorlink= |year=1993 |publisher=University Press of Kansas |location=Lawrence |isbn=0-7006-0603-3 |pages= }}
* Strum, Philippa (2015). ''Speaking Freely: Whitney V. California and American Speech Law.'' Lawrence, KS: University Press of Kansas.
*{{cite book |title=I dissent: Great Opposing Opinions in Landmark Supreme Court Cases |last=Tushnet |first=Mark |authorlink= |year=2008 |publisher=Beacon Press |location=Boston |isbn=978-0-8070-0036-6 |pages=93&ndash;100 }}


==External links==
==External links==
{{wikisource-inline|Whitney v. California}}
*{{wikisource-inline|Whitney v. California}}
*{{caselaw source
*{{caselaw source
|case=''Whitney v. California'', 274 U.S. 357 (1927)
|case=''Whitney v. California'', {{ussc|274|357|1927|el=no}}
|findlaw=http://caselaw.findlaw.com/us-supreme-court/274/357.html
|findlaw=https://caselaw.findlaw.com/us-supreme-court/274/357.html
|justia=http://supreme.justia.com/us/274/357/case.html
|justia=http://supreme.justia.com/us/274/357/case.html
| loc =http://cdn.loc.gov/service/ll/usrep/usrep274/usrep274357/usrep274357.pdf
}}
}}
*[http://www.firstamendmentcenter.org/faclibrary/case.aspx?case=Whitney_v_CA First Amendment Library entry on ''Whitney v. California'']
*[https://web.archive.org/web/20101217030120/http://www.firstamendmentcenter.org/faclibrary/case.aspx?case=Whitney_v_CA First Amendment Library entry on ''Whitney v. California'']
*[http://www.aclu90.org/90_more_sc.html Major ACLU Cases by Decade]


{{US1stAmendment|speech|state=expanded}}
{{US1stAmendment|speech|state=expanded}}
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[[Category:United States Supreme Court cases of the Taft Court]]
[[Category:United States Free Speech Clause case law]]
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[[Category:Legal history of California]]
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[[Category:United States Supreme Court cases of the Taft Court]]

Latest revision as of 08:59, 14 September 2024

Whitney v. California
Supreme Court of the United States
Argued October 6, 1925
Reargued March 18, 1926
Decided May 16, 1927
Full case nameCharlotte Anita Whitney
v.
People of the State of California
Citations274 U.S. 357 (more)
47 S. Ct. 641; 71 L. Ed. 1095; 1927 U.S. LEXIS 1011
Case history
PriorDefendant 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)
SubsequentNone
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 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. Sanford · Harlan F. Stone
Case opinions
MajoritySanford, joined by Taft, Van Devanter, McReynolds, Sutherland, Butler, Stone
ConcurrenceBrandeis, 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 clear and present danger to society.[1] While the majority of the Supreme Court Justices voted to uphold the conviction, the ruling has become an important free speech precedent due a concurring opinion by Justice Louis Brandeis recommending new perspectives on criticism of the government by citizens.[2] The ruling was explicitly overruled by Brandenburg v. Ohio in 1969.[3]

Background

[edit]

Anita Whitney, a member of a distinguished California family, was convicted under the 1919 California Criminal Syndicalism Act for allegedly helping to establish the Communist Labor Party of America, a group accused by the state of advocating the violent overthrow of the American government. Whitney was arrested in November 1919 after giving a speech in Oakland to attract financial support for the California chapter of the party.[4]

Whitney denied that it had been the intention of her or other organizers for the party to become an instrument of violence. In February 1920, Whitney was tried at the Alameda County Superior Court and was found guilty of four counts of criminal syndicalism. She was sentenced to one to fourteen years at San Quentin Penitentiary, but was released after eleven days upon posting a bond and presenting evidence of poor health.[5] Whitney attempted several appeals within the California state court system, arguing against the applicability of the state's 1919 statute, but without success. Her petition to the California Supreme Court was denied.[6] Whitney then adopted an argument based on the due process and equal protection clauses of the Fourteenth Amendment to the U.S. Constitution, claiming that her speech was punished differently than the speech of others due to the subject matter.[2] Whitney petitioned to the United States Supreme Court to review her criminal conviction, and the high court agreed to hear the case in March 1926.[1]

Supreme Court ruling

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The question before the court was whether the Criminal Syndicalism Act in California violated the due process and equal protection clauses of the Fourteenth Amendment. The court unanimously upheld Whitney's criminal conviction, with seven Justices joining the majority opinion and two issuing a concurring opinion.[1] Justice Edward T. Sanford wrote the majority opinion citing the clear and present danger test that had been developed by Oliver Wendell Holmes in Schenck v. U.S. (1919), holding that Whitney's speech in Oakland justified a police response under that test.[7]

Sanford expanded the clear and present danger test to address the specific circumstances and content of Whitney's criminal conviction. The court held that the state, in exercising its police power, has the power to punish those who abuse their rights to freedom of 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, speech with a "bad tendency" can be punished. Thus, the state's police power toward this type of speech did not conflict with the Fourteenth Amendment.[1] Whitney's criminal conviction was upheld.[2]

Brandeis's concurrence

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Since the main question before the Supreme Court involved possible violations of the Fourteenth Amendment, Justices Louis Brandeis and Oliver Wendell Holmes voted with the majority on that question but considered the unintended ramifications for free speech. Brandeis wrote a concurring opinion, joined by Holmes, that many scholars have lauded as perhaps the greatest defense of freedom of speech ever written by a member of the Supreme Court.[2][8][9]

Brandeis deviated significantly from prevailing judicial thought on the First Amendment, and applied free speech to the democratic process. He held that citizens have an obligation to take part in the governing process, and they cannot do so unless they can discuss and criticize governmental policy fully and without fear. If the government can punish unpopular views, it cramps freedom. In the long run, that will strangle democratic processes. Thus, free speech is not only an abstract virtue but also a key element at the heart of a democratic society.[9]

Brandeis also suggested a reappraisal of the prevailing clear and present danger test, and insisted 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. Brandeis argued that governments, while having a right to curb truly dangerous expression, must clearly define the nature of that danger. Mere fear of unpopular ideas will not do.[10] In Brandeis's words:[1]

But they [the founding fathers] knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies, and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law -- the argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed.

Impact and subsequent events

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Shortly after the Supreme Court's ruling, Anita Whitney was pardoned by the Governor of California based on Justice Brandeis' concurring opinion.[11] Philippa Strum, oft the Woodrow Wilson International Center for Scholars, asserted that Whitney was a pacifist who believed in working within the American political system. Whitney was, in effect, put on trial for her association with labor groups as well as her own reform activities, which included fighting for equality and advocating for a more equitable political and economic system.[12]

Brandeis's concurrence in the Whitney ruling eventually became more influential than the majority opinion,[13][14] and hinted toward the rejection of the clear and present danger test. This indeed happened by the 1950s-60s, as the American judiciary transitioned to a focus on the risk of imminent lawless action caused by speech that government officials find inappropriate.[15] This doctrine was solidified by the Supreme Court ruling in Brandenburg v. Ohio in 1969, which explicitly overturned Whitney v. California as a precedent.[3] Constitutional experts have called Brandeis's concurrence a "milestone" for free speech jurisprudence,[2] that upholds "the basic stanchion of our society."[10]

See also

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References

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  1. ^ a b c d e Whitney v. California, 274 U.S. 357 (S. Ct., 1927).
  2. ^ a b c d e Belpedio, James R. (December 15, 2023). "Whitney v. California (1927)". The Free Speech Center. Retrieved February 5, 2024.
  3. ^ a b Brandenburg v. Ohio, 395 U.S. 444 (S. Ct., 1969).
  4. ^ Whitten, Woodrow C. (March 1969). "Criminal Syndicalism and the Law in California: 1919–1927". Transactions of the American Philosophical Society. 59 (2): 43-44. doi:10.2307/1006021. JSTOR 1006021.
  5. ^ Whitten, pp. 47-48.
  6. ^ Whitten, pp. 48-52.
  7. ^ Schenck v. United States, 249 U.S. 47 (S. Ct., 1919).
  8. ^ Serafin, Tatiana (January 27, 2018). "Brandeis Concurring With Holmes in Whitney v. California, 1927". First Amendment Watch. Retrieved February 5, 2024.
  9. ^ a b Blasi, Vincent (Summer 1988). "The First Amendment and The Ideal of Civic Courage: The Brandeis Opinion in Whitney v. California". William and Mary Law Review. 29 (4): 668–685.
  10. ^ a b Ernst, Morris L.; Katz, Arthur Joel (May 1953). "Speech: Public and Private". Columbia Law Review. 53 (5): 624–627 – via JSTOR.
  11. ^ "Unthinkable". Time. July 4, 1927. Archived from the original on October 21, 2012. Retrieved September 26, 2007.
  12. ^ Philippa Strum, Speaking Freely: Whitney v. California and American Speech Law, University Press of Kansas (2015).
  13. ^ Collins, Ronald K.L; Skover, David M. (2005). "Curious Concurrence: Justice Brandeis's Vote in Whitney v. California". The Supreme Court Review. 2005: 333–336 – via HeinOnline.
  14. ^ Dee, Juliet (2003). "Free Speech on Trial: Communication Perspectives on Landmark Supreme Court Decisions". In Parker, Richard A. (ed.). Whitney v. California. Tuscaloosa, AL: University of Alabama Press. pp. 36–51. ISBN 978-0-8173-1301-2.
  15. ^ "Whitney v. California (1927)". National Constitution Center. Retrieved February 5, 2024.
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