Whitney v. California - Wikipedia

Whitney v. California
Argued October 6, 1925
Reargued March 18, 1926
Decided May 16, 1927
Full case nameCharlotte Anita Whitney
People of the State of California
Citations274 U.S. 357 (more)
47 S. Ct. 641; 71 L. Ed. 1095; 1927 U.S. LEXIS 1011
Case history
PriorDefendant 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)
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
MajoritySanford, joined by Taft, Van Devanter, McReynolds, Sutherland, Butler, Stone
ConcurrenceBrandeis, 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. Whitney was explicitly overruled by Brandenburg v. Ohio in 1969.


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][failed verification] Justices Brandeis and Holmes concurred because of the Fourteenth Amendment questions, but there is no question 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.

He held 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 at the heart of a democratic society.

Implicitly, Brandeis here moves far beyond the "clear and present danger" test, and 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, 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[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]


Philippa Strum, former director of the Division of United States Studies at the Woodrow Wilson International Center for Scholars, has asserted that Whitney was a pacifist who believed in working within the American political system. According to Strum, the evidence presented at the trial focused on the platform and actions of the Industrial Workers of the World (IWW), a radical organization to which Whitney had contributed a small amount of money, but of which she was not a member. Whitney was, in effect, put on trial for her association with the IWW as well as her own reform activities, which included fighting for gender and racial equality and advocating a more equitable political and economic system.[7]

See also[edit]


  1. ^ Lewis, Anthony (1991). Make No Law: The Sullivan case and the First Amendment. New York: Random House. pp. 85. ISBN 978-0-394-58774-5.
  2. ^ 274 US 376 (1927)
  3. ^ "Unthinkable". Time. 1927-07-04. Archived from the original on October 21, 2012. 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. ^ "Whitney v. California, 274 US 357 - Supreme Court 1927 - Google Scholar". Archived from the original on 2019-06-16. Retrieved 2016-09-23.
  7. ^ Philippa Strum, Speaking Freely: Whitney v. California and American Speech Law, University Press of Kansas (2015).

Further reading[edit]

External links[edit]