Whitney v. California

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 itself and 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 governor C. C. Young pardoned Whitney a few months after the case.) Brandeis reasoned that if they had argued for a "clear and present danger" standard by which to judge her behavior, the Court might have reversed her conviction. Brandeis was joined in this opinion by Justice Holmes, the originator of the test. Holmes first used the phrase "clear and present danger" in Schenck v. United States (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 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 . . . But even advocacy of violations, however reprehensible morally, is not a justification for denying free speech where the advocacy falls short of incitement and there 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 resurfaced as 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.