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.
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 crime, disturb the public peace, or threaten the overthrow of government by unlawful means.
Court membership
Chief Justice
William H. Taft
Case opinions
Majority Sanford, joined by Taft, Van Devanter, McReynolds, Sutherland, Butler, Stone
Concurrence 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.

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.

Whitney denied that it had been the intention of her or other organizers for the party to become an instrument of violence.

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 Holmes test of "clear and present danger" but also went further.

The Court held that the state, in exercise of 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, words with a "bad tendency" can be punished.

Brandeis's concurrence

The case is most noted for Justice Louis 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: 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.

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.

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:[2]

“ 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. ”

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. 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.

Quotes

See also

References

  1. ↑ Lewis, Anthony (1991). Make No Law: The Sullivan case and the First Amendment. New York: Random House. p. 85. ISBN 0-394-58774-X.
  2. ↑ 274 US 376 (1927)
  3. ↑ Quoted in the opinion of Landmark Communications v. Virginia, 435 U.S. 829 (1978), 844.
  4. ↑ Whitney, 274 U.S. 357 (1927), 377
  5. ↑ https://scholar.google.com/scholar_case?case=9558803063364299687&hl=en&as_sdt=6&as_vis=1&oi=scholarr

Further reading

Works related to Whitney v. California at Wikisource

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