Whitney v. California

Whitney v. California

Argued October 6, 1925
Reargued March 18, 1926
Decided May 16, 1927

Full case name:	Charlotte Anita Whitney v. California

Citations:	274 U.S. 357; 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 Howard Taft
Associate Justices: Oliver Wendell Holmes, Jr., Willis Van Devanter, James Clark McReynolds, Louis Brandeis, George Sutherland, Pierce Butler (justice)

Case opinions

Majority by: Sanford
Joined by: Taft, Van Devanter, McReynolds, Sutherland, Butler, Stone
Concurrence by: 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.

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 Court, by a 9-0 vote, upheld the 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. At the convention she actually advocated reform through ballot measures.

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. (He and Justice Holmes concurred in the result because of certain technical issues, but there is no question that the sentiments are a distinct dissent from the views of the prevailing majority.)

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 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.

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. ^[1]

References

1. ^ Quoted in the opinion of Landmark Communications v. Virginia, 435 U.S. 829, 844 (1978).

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William Howard Taft (September 15 1857 – March 8 1930) was an American politician, the twenty-seventh President of the United States, the tenth Chief Justice of the United States, a leader of the progressive conservative wing of the Republican Party in the early 20th century,
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Oliver Wendell Holmes, Jr. (March 8, 1841 – March 6, 1935) was an American jurist who served on the Supreme Court of the United States from 1902 to 1932. Noted for his long service, his concise and pithy opinions, and his deference to the decisions of elected legislatures, he
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Willis Van Devanter (April 17, 1859 - February 8, 1941) was an Associate Justice of the United States Supreme Court, January 3, 1911 to June 2, 1937.

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James Clark McReynolds (February 3, 1862–August 24, 1946) was an American lawyer and judge who served both as United States Attorney General under President Woodrow Wilson and as an Associate Justice of the United States Supreme Court.
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Louis Dembitz Brandeis (November 13, 1856 – October 5, 1941) was an American litigator, Supreme Court Justice, advocate of privacy, and developer of the Brandeis Brief. In addition, he helped lead the American Zionist movement.
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Brandenburg v. Ohio

Supreme Court of the United States
Argued February 27, 1969
Decided June 9, 1969

Full case name: Clarence Brandenburg v. State of Ohio

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Clear and present danger is a term used by U.S. Supreme Court Justice Oliver Wendell Holmes, Jr. in the majority opinion for the case Schenck v. United States, 249 U.S.
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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
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