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Whitney v. California

Supreme Court of United States
274 U.S. 357 (1927)
ELI5:

Rule of Law:

A state may, consistent with the Due Process Clause of the Fourteenth Amendment, constitutionally punish those who knowingly join or assist in organizing a group that advocates for the use of unlawful force to effect political and industrial change, as such speech falls outside the protection of the First Amendment.


Facts:

  • Anita Whitney was a member of the Local Oakland branch of the Socialist Party.
  • Delegates from her local branch sided with a radical faction at the 1919 national Socialist Party convention, which then broke away to form the Communist Labor Party of America (CLP-A).
  • The CLP-A's platform advocated for a revolutionary class struggle to overthrow the capitalist state and establish a "Dictatorship of the Proletariat."
  • Whitney attended a convention in Oakland to organize a California branch of the CLP-A (the CLP-CA), where she served on the Credentials and Resolutions committees.
  • The resolutions committee, including Whitney, proposed a resolution supporting the use of political action and the ballot to achieve the party's goals.
  • The convention delegates voted to reject this resolution, and instead adopted the more radical national platform, affiliating the California party with the Communist International of Moscow.
  • Despite the rejection of her preferred platform, Whitney remained at the convention and was elected as an alternate to the State Executive Committee.
  • Whitney continued as a member of the Communist Labor Party of California and attended committee meetings after the convention.

Procedural Posture:

  • The State of California filed a criminal information against Anita Whitney in the Superior Court of Alameda County, a state trial court.
  • Following a trial, a jury convicted Whitney on one count of violating the Criminal Syndicalism Act.
  • Whitney appealed her conviction to the District Court of Appeal of California, an intermediate appellate court.
  • The District Court of Appeal affirmed the trial court's judgment.
  • Whitney filed a petition to have the case heard by the Supreme Court of California, the state's highest court, which was denied.
  • Whitney then brought the case to the Supreme Court of the United States on a writ of error to the District Court of Appeal, the highest state court where a decision could be had.

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Issue:

Does California's Criminal Syndicalism Act, which criminalizes organizing or knowingly becoming a member of any group that advocates for violent political or industrial change, violate the Due Process and Equal Protection Clauses of the Fourteenth Amendment by infringing on the rights of free speech and assembly?


Opinions:

Majority - Mr. Justice Sanford

No, the California Criminal Syndicalism Act does not violate the Fourteenth Amendment. A state may constitutionally punish those who abuse their rights of free speech and assembly by joining and furthering an organization that menaces the public peace and the security of the state. The Court reasoned that the freedom of speech secured by the Constitution is not absolute and does not grant immunity for every possible use of language. States, in the exercise of their police power, may punish speech that is inimical to the public welfare, tends to incite crime, or endangers the foundations of organized government. The Act is not unconstitutionally vague, nor does it violate the Equal Protection Clause by targeting only those who advocate for violent change, as a state may direct legislation against what it deems an existing evil. The essence of the offense is a conspiracy-like act of combining with others, which poses a greater danger than individual utterances. The legislature's determination that such groups pose a danger to public peace is entitled to great weight, and the Act is not an arbitrary or unreasonable exercise of state power.


Concurring - Mr. Justice Brandeis

No, the statute as applied in this case does not violate the Fourteenth Amendment, but only because the constitutional challenge was not properly raised at trial. The correct standard for restricting fundamental rights like free speech and assembly is whether the speech would produce, or is intended to produce, a clear and imminent danger of some substantive evil which the state may constitutionally prevent. Brandeis argued that the founders valued liberty and believed that the remedy for evil counsels is not repression, but 'more speech.' For speech to be suppressed, there must be a reasonable ground to believe the danger is imminent and the evil is serious. A legislative declaration of an emergency is not sufficient to justify such a restriction. However, because Whitney did not argue at trial that no clear and present danger existed, and there was some evidence of a potential conspiracy, the Court's power of review is limited, and it must affirm the judgment of the state court on procedural grounds.



Analysis:

This case represents a high-water mark for the 'bad tendency' test, which allows the government to punish speech that has a tendency to lead to illegal action, even if that action is not imminent. The majority opinion gives significant deference to legislative judgments about public safety threats. However, the case is most famous for Justice Brandeis's eloquent and powerful concurrence, which articulated the 'clear and present danger' test and a robust defense of free speech as essential to democracy. Brandeis's reasoning laid the intellectual groundwork that the Supreme Court would later adopt, effectively replacing the 'bad tendency' test with a more speech-protective standard in landmark cases like Brandenburg v. Ohio (1969).

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