Whitney v. California
Encyclopedia
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.
, 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.
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.
'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. 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.
The Court's decision in the Whitney case was overruled in 1969 in Brandenburg v. Ohio.
Case citation
Case citation is the system used in many countries to identify the decisions in past court cases, either in special series of books called reporters or law reports, or in a 'neutral' form which will identify a decision wherever it was reported...
(1927), was a United States Supreme Court
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
decision upholding the conviction of an individual who had engaged in speech that raised a threat to society.
Facts
Anita WhitneyCharlotte Anita Whitney
Charlotte Anita Whitney , best known as "Anita Whitney," was an American women's rights activist, political activist, suffragist, and early Communist Labor Party and Communist Party USA organizer in California...
, a member of a distinguished California
California
California is a state located on the West Coast of the United States. It is by far the most populous U.S. state, and the third-largest by land area...
family, was convicted under the state's 1919 Criminal Syndicalism Act for allegedly helping to establish the Communist Labor Party
Communist Labor Party
The Communist Labor Party of America was one of the organizational predecessors of the Communist Party USA. The group was established at the end of August 1919 following a three-way split of the Socialist Party of America...
, 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 Whitney's conviction. Justice Sanford wrote for the seven-justice majority opinion, and invoked the HolmesOliver Wendell Holmes, Jr.
Oliver Wendell Holmes, Jr. was an American jurist who served as an Associate Justice of the Supreme Court of the United States from 1902 to 1932...
test of "clear and present danger
Clear and present danger
Clear and present danger was a term used by Justice Oliver Wendell Holmes, Jr. in the unanimous opinion for the case Schenck v. United States, concerning the ability of the government to regulate speech against the draft during World War I:...
" 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 BrandeisLouis Brandeis
Louis Dembitz Brandeis ; November 13, 1856 – October 5, 1941) was an Associate Justice on the Supreme Court of the United States from 1916 to 1939.He was born in Louisville, Kentucky, to Jewish immigrant parents who raised him in a secular mode...
'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. Justice Brandeis and Justice Holmes
Oliver Wendell Holmes, Jr.
Oliver Wendell Holmes, Jr. was an American jurist who served as an Associate Justice of the Supreme Court of the United States from 1902 to 1932...
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
Abrams v. United States
Abrams v. United States, 250 U.S. 616 , was a 7-2 decision of the United States Supreme Court involving the 1918 Amendment to the Espionage Act of 1917, which made it a criminal offense to urge curtailment of production of the materials necessary to the war against Germany with intent to hinder the...
had been willing to defend speech on abstract grounds, believing that unpopular ideas should have their opportunity to compete in the "marketplace of ideas
Marketplace of ideas
The "marketplace of ideas" is a rationale for freedom of expression based on an analogy to the economic concept of a free market. The "marketplace of ideas" belief holds that the truth or the best policy arises out of the competition of widely various ideas in free, transparent public discourse, an...
." 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
Clear and present danger
Clear and present danger was a term used by Justice Oliver Wendell Holmes, Jr. in the unanimous opinion for the case Schenck v. United States, concerning the ability of the government to regulate speech against the draft during World War I:...
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
William O. Douglas
William Orville Douglas was an Associate Justice of the United States Supreme Court. With a term lasting 36 years and 209 days, he is the longest-serving justice in the history of the Supreme Court...
believed that had Brandeis lived longer, he would have abandoned the clear and present danger
Clear and present danger
Clear and present danger was a term used by Justice Oliver Wendell Holmes, Jr. in the unanimous opinion for the case Schenck v. United States, concerning the ability of the government to regulate speech against the draft during World War I:...
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
Freedom of speech
Freedom of speech is the freedom to speak freely without censorship. The term freedom of expression is sometimes used synonymously, but includes any act of seeking, receiving and imparting information or ideas, regardless of the medium used...
is absolutely protected under the First Amendment
First Amendment to the United States Constitution
The First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering...
. Brandeis does not go that far here, and his views were ultimately adopted by the Court in Brandenburg v. Ohio
Brandenburg v. Ohio
Brandenburg v. Ohio, , was a landmark United States Supreme Court case based on the First Amendment to the U.S. Constitution. It held that government cannot punish inflammatory speech unless it is directed to inciting and likely to incite imminent lawless action...
, 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.
The Court's decision in the Whitney case was overruled in 1969 in Brandenburg v. Ohio.
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 assemblyFreedom of assemblyFreedom of assembly, sometimes used interchangeably with the freedom of association, is the individual right to come together and collectively express, promote, pursue and defend common interests...
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 BrandeisLouis BrandeisLouis Dembitz Brandeis ; November 13, 1856 – October 5, 1941) was an Associate Justice on the Supreme Court of the United States from 1916 to 1939.He was born in Louisville, Kentucky, to Jewish immigrant parents who raised him in a secular mode...
in the Whitney opinion. - "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
- Charlotte Anita WhitneyCharlotte Anita WhitneyCharlotte Anita Whitney , best known as "Anita Whitney," was an American women's rights activist, political activist, suffragist, and early Communist Labor Party and Communist Party USA organizer in California...
- Schenck v. United StatesSchenck v. United StatesSchenck v. United States, , was a United States Supreme Court decision that upheld the Espionage Act of 1917 and concluded that a defendant did not have a First Amendment right to express freedom of speech against the draft during World War I. Ultimately, the case established the "clear and present...
, - Abrams v. United StatesAbrams v. United StatesAbrams v. United States, 250 U.S. 616 , was a 7-2 decision of the United States Supreme Court involving the 1918 Amendment to the Espionage Act of 1917, which made it a criminal offense to urge curtailment of production of the materials necessary to the war against Germany with intent to hinder the...
, - Dennis v. United StatesDennis v. United StatesDennis v. United States, , was a United States Supreme Court case involving Eugene Dennis, general secretary of the Communist Party USA, which found that Dennis did not have a right under the First Amendment to the Constitution of the United States to exercise free speech, publication and assembly,...
, - Brandenburg v. OhioBrandenburg v. OhioBrandenburg v. Ohio, , was a landmark United States Supreme Court case based on the First Amendment to the U.S. Constitution. It held that government cannot punish inflammatory speech unless it is directed to inciting and likely to incite imminent lawless action...
, - List of United States Supreme Court cases, volume 274