Whitney v. California - Further Readings

Appellant
Charlotte Anita Whitney
Appellee
People of the State of California
Appellant's Claim
That a 1919 California criminal syndicalism law violated the First Amendmentguarantees of freedom of speech and association.
Chief Lawyers for Appellant
Walter H. Pollak, Walter Nelles
Chief Lawyers for Appellee
John H. Riordan, U. S. Webb
Justices for the Court
Louis D. Brandeis, Pierce Butler, Oliver Wendell Holmes, James Clark McReynolds, Edward Terry Sanford (writing for the Court), Harlan Fiske Stone, GeorgeSutherland, William Howard Taft, Willis Van Devanter
Justices Dissenting
None
Place
Washington, D.C.
Date of Decision
26 May 1927
Decision
The Supreme Court upheld the California law.
Significance
The concurrence was actually more important than the opinion of the Court inWhitney.
In 1919, California passed a law criminalizing syndicalism, a philosophy which advocated bringing government and industry under the control of labor through "direct action," such as strikes. The law was aimed chiefly at the International Workers of the World (IWW), or "Wobblies," a radical labor group thenactive in the West.
The first important prosecution under the law was of Charlotte Anita Whitney,a social activist and prominent member of the Socialist Party. In 1919 she was arrested while participating in a convention organized by the Communist Labor Party (CLP), a radical California-based offshoot of the Socialist Party.At trial, Whitney did not deny her brief association with the CLP, and the prosecution seized the opportunity to associate her with the IWW, whose goals had been endorsed by the CLP. Whitney was convicted of violating the anti-syndicalism law, and after the California Court of Appeals upheld her conviction,she appealed to the U.S. Supreme Court.
Supreme Court Upholds California Criminal Syndicalism Law
The conservative Court headed by Taft voted 9 to 0 to uphold the California statute, as well as Whitney's conviction. As Justice Sanford wrote in his opinion for the Court, the state has the right--even the duty--to protect itselfand its citizens from violent political action. However, although the vote was unanimous, there was more than one opinion in the case, and it is Justice Brandeis's concurrence that has lent Whitney lasting significance.
Whitney's attorneys seemed not to have done well by her. (California governorC. C. Young pardoned Whitney a few months after the case.) Brandeis reasonedthat if they had argued for a "clear and present danger" standard by which to judge her behavior, the Court might have reversed her conviction. Brandeiswas joined in this opinion by Justice Holmes, the originator of the test. Holmes first used the phrase "clear and present danger" in Schenck v. UnitedStates (1919) to describe a situation where it is permissible for government to restrict speech otherwise protected by the First Amendment. In Schenck, the Court unanimously upheld the convictions of socialists who had distributed antiwar literature to men going through the conscription process during World War I. Holmes, like his fellow justices, found that the government had a right to intercept these communications which might interfere with army recruitment in time of war.
As it had after World War II, a Red Scare period followed in the wake of World War I. Whitney was a victim of that period, found guilty not so much of acts but of associations. Brandeis's opinion in Whitney made it clear that when it came to dissident speech, there should be a distinction made between mere association and dangerous acts:

Fear of serious injury alone cannot justify suppression of free speech and assembly . . . To justify suppression of free speech there must be reasonable ground to fear that seriousevil will result if free speech is practiced. There must be reasonable groundto believe that the danger apprehended is imminent. There must be reasonableground to believe that the evil to be prevented is a serious one . . . But even advocacy of violations, however reprehensible morally, is not a justification for denying free speech where the advocacy falls short of incitement andthere is nothing to indicate that the advocacy would be immediately acted on. . . In order to support a finding of clear and present danger it must be shown either that immediate serious violence was to be expected or was advocated, or that the past conduct furnished reason to believe that such advocacy was then contemplated.

This was the test that Brandeis believed should be applied to a statute which, like the California anti-syndicalism law, defined speech itself as a criminal offense. The Supreme Court never fully developed the clear and present danger standard, and in Dennis v. United States (1951), the Court did away with the immediacy requirement to uphold the convictions of 11 Communist Party leaders during the height of the post-World War II Red Scare. Then, in Brandenburg v. Ohio (1969), the clear and present danger test resurfacedas a rationale for overturning the conviction of a Ku Klux Klan leader convicted of advocating criminal syndicalism. Brandenburg overturned Whitney, but a modified version of the California criminal syndicalism law remained on the books.
Related Cases

• Schenck v. United States, 249 U.S. 47 (1919).
  
• Dennis v. United States, 341 U.S. 494 (1951).
  
• Brandenburg v. Ohio, 395 U.S. 444 (1969).

The California Criminal Syndicalism Act
As with the era of McCarthyism in the 1950s, the Red Scare of the late 1910sand early 1920s followed a world war. In both cases, the winding down of international hostilities had been attended by the spread of Communism: thus after World War II, Communists took over numerous countries in Europe, and to many Americans, a Soviet takeover of the United States seemed possible if not imminent.
Responding to fears inspired by the "Wobblies" (the Industrial Workers of theWorld), as well as by Communists and other agitators, Idaho in 1917 passed acriminal syndicalism law which became the model for California's and that ofmost other states. Much like its predecessor in Idaho, the 1919 California act defined "criminal syndicalism" as "any doctrine or precept advocating, teaching, or aiding and abetting the commission of crime, sabotage . . . or unlawful acts of force . . . as a means of accomplishing a change in industrial ownership . . . or effecting any political change." Likewise the California act, in accordance with the Idaho model, defined participation in "criminal syndicalism" as "a felony . . . punishable by imprisonment."
In the heyday of the Red Scare, from 1917 to 1920, no fewer than 22 states and territories adopted criminal syndicalism laws, and eight others consideredadopting them. But by the 1930s--a period when American sympathy for Communism was its highest point, due to the Great Depression--most criminal syndicalism laws had fallen into disuse. The Supreme Court overturned its Whitney ruling once and for all with Brandenburg v. Ohio in 1969.
Sources
Levy, Leonard W., ed. Encyclopedia of the American Constitution. New York: Macmillan, 1986.