Whitney v. California

Explanation and Analysis of the Document

The celebrated case of Whitney v. California was argued before the Supreme Court in October 1925 and then reargued in March 1926. Anita Whitney, then in her early fifties, was a member of a prominent California family—one of her uncles was a former Supreme Court justice, and her father was a member of the state legislature. In 1919 she helped organize the Communist Labor Party of California. Because that party sanctioned the use of violence in the pursuit of its political and economic goals (though Whitney herself opposed the use of violence), she was convicted of violating California's Criminal Syndicalism Act of 1919, which declared participation in such activity illegal. On May 16, 1927, the Court handed down a unanimous opinion upholding Whitney's conviction.

The moment in American history when the events leading to this case occurred is sometimes called by historians the “first red scare” (to distinguish it from Senator Joseph McCarthy's hunt for Communists in the early 1950s). The Russian Revolution of October 1917, combined with continuing suspicion of nonconformity carried over from World War I and what many Americans saw as a heightened threat of anarchism, led several states to pass laws like California's. The federal government was also active in the prosecution and deportation of radicals in 1919–1920.

Seven members of the Court joined the opinion of Justice Edward Sanford to uphold the conviction. For some years the Court had been applying the test first enunciated by Justice Oliver Wendell Holmes in Schenck v. United States (1919), namely, that speech could be regulated only if its utterance constituted a “clear and present danger” of bringing about an evil that the Congress had the right to prevent. The Court's majority believed that, in this case, the California legislature's judgment—that the speech used by the Communist Labor Party satisfied the clear-and-present-danger test—had to be given great weight.

In his concurring opinion (in which he was joined by Justice Holmes), Brandeis makes arguments that expanded the freedom of speech. First, he points out that the Court had never fully defined what established a clear and present danger. Moreover, the Court was not obliged to accept the definition of the California legislature but could decide the matter on the basis of its own criteria. Brandeis then tries to define what should be meant by “present” danger—the danger, he said, should be imminent, close at hand. A radical speech advocating a course of action that could not possibly occur until years into the future, therefore, is too remote to be regulated and so is protected by the First Amendment. Indeed, if there is time to answer the false ideas of an utterance with contrary ideas, the danger is not so imminent as to warrant that speech's punishment.

Brandeis was not particularly known for eloquence; that was Holmes's specialty. Brandeis rather had a strong reputation for using clear, simple, matter-of-fact language and for crafting arguments based on the careful marshaling of facts. But in this case, he gave voice to one of the greatest defenses of the freedom of speech in American history. By connecting the right to free and generally unrestrained speech both to the unafraid views of the nation's founders and to the responsibility of the citizen to hear and weigh arguments and by then attaching that process to the healthy functioning of democracy itself, Brandeis laid the groundwork for the broadest exercise of freedom of expression. This was an instance when the minority opinion received greater attention and respect than that of the majority, and eventually Brandeis's concurrence became the dominant precedent in speech cases coming before the Supreme Court. The governor of California referred to Brandeis's concurrence when he issued a pardon for Anita Whitney, and in another Supreme Court case, in 1969, the verdict in Whitney was explicitly overruled.

Although Brandeis obviously disagreed with the views of his brethren in this case, he nonetheless felt obliged to concur in their judgment. Whitney's lawyers had attacked the constitutionality of California's act, but they had not raised, in the lower courts, the question of “clear and present danger” regarding her activity. On that ground he would have probably voted to overturn the verdict, but he did not feel able to decide a case on the basis of an argument that had not been made.