Whitney v. California

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Whitney v. California
Seal of the United States Supreme Court.svg
Argued October 6, 1925
Reargued March 18, 1926
Decided May 16, 1927
Full case name Charlotte Anita Whitney
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
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
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.


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.


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[edit]

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]

Subsequent jurisprudence and further developments[edit]

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.[3]


  • "[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.[4]
  • "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. [5]
  • "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.[6]

See also[edit]


  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. ^ "Unthinkable". Time. 1927-07-04. Retrieved 2007-09-26. 
  4. ^ Quoted in the opinion of Landmark Communications v. Virginia, 435 U.S. 829 (1978), 844.
  5. ^ Whitney, 274 U.S. 357 (1927), 377
  6. ^ https://scholar.google.com/scholar_case?case=9558803063364299687&hl=en&as_sdt=6&as_vis=1&oi=scholarr

Further reading[edit]

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

External links[edit]

Works related to Whitney v. California at Wikisource