Whitney v. California is one of the half-dozen most important free speech cases ever decided by the U.S. Supreme Court. Its significance, however, lies less in the Court’s actual decision than in the separate concurring opinion filed by Justice Louis D. Brandeis. Brandeis’s eloquent discourse on the meaning and importance of free speech in a democratic society has inspired civil libertarians ever since, and his First Amendment views occupy a prominent place in the firmament of American constitutional law.
Anita Whitney, suffragist and political radical, was convicted in 1920 under California’s Criminal Syndicalism Act for her role—de minimis, as it turned out— in the formation of the Communist Labor Party in 1919. Such state ‘‘criminal syndicalism’’ statutes, which punished organization of or membership in an association advocating the use of violence to effect industrial or political change, proliferated in the years after U.S. entry into World War I. These statutes reflected the hostility to antiwar activism and fear of ‘‘alien’’ ideologies that inspired the infamous ‘‘red scare’’ of 1919–1920. Particularly in the western states, they were also a response to labor militancy, heralded by the increasing influence of the Industrial Workers of the World.
In affirming Whitney’s conviction, the Supreme Court continued its pattern, first established in a series of cases in 1919, of upholding the constitutionality of state and federal statutes that punished seditious or subversive speech. In a series of dissenting opinions beginning in 1919, Justices Louis Brandeis and Oliver Wendell Holmes had unsuccessfully argued that the ‘‘clear and present danger’’ test, first devised in 1919 by Holmes as a way of reconciling First Amendment principles with government powers of self-preservation in times of war, barred the government from criminalizing speech in any but the most pressing circumstances. In his separate opinion (really a dissent, although labeled a concurrence for technical reasons) in Whitney, however, Brandeis went further and gave American free speech jurisprudence an impassioned theoretical and historical defense, rooted in venerable democratic principles.
Holmes had written eloquently in 1919 of the importance of allowing truth to emerge from an unfettered ‘‘marketplace’’ of ideas, but this image, like many deployed by Holmes, had coldly Darwinian overtones. Brandeis’s more ebullient language in Whitney suggested that the exercise of free speech was essential to the health of a functioning deliberative democracy. To Brandeis, ‘‘[T]he greatest menace to freedom is an inert people.... [P]ublic discussion is a political duty.’’ Thus, freedom of speech required the utmost protection, not only to safeguard the individual’s thoughts and beliefs from governmental intrusion, but more importantly to make enlightened self-government possible. Brandeis’s words reflected his admiration for the society of ancient Athens, in which he saw a democracy that rested on the virtue of a courageous citizenry.
In Whitney, Brandeis ascribed his majestic vision of free speech to the founders, a move as rhetorically effective as it was historically romantic:
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 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.
Less noticed amid his soaring language was Brandeis’s careful and extensive reshaping of Holmes’s ‘‘clear and present danger’’ test, construing the words ‘‘clear,’’ ‘‘present,’’ and ‘‘danger’’ so restrictively as to establish an extraordinarily high threshold for the constitutionality of governmental prohibitions of or punishment for speech.
Brandeis’s separate opinion in Whitney exerted no immediate legal authority; of the other justices, only Holmes joined his opinion. But, with the advent of a more liberal Supreme Court in the 1930s and 1940s and greater public consciousness about the importance of free expression, the First Amendment views of Holmes and Brandeis were transformed within a generation into settled law. The apotheosis of Brandeis’s Whitney opinion came in the 1969 case of Brandenburg v. Ohio, in which the Court explicitly overruled the decision in Whitney and struck down Ohio’s criminal syndicalism statute, based largely on the arguments advanced by Brandeis in his Whitney concurrence. The ‘‘clear and present danger’’ test has largely disappeared from free speech jurisprudence, replaced by more refined analyses addressed to a new and different set of free speech problems. But Brandeis’s opinion in Whitney remains the central twentieth-century judicial text in the American free-speech canon.
References and Further Reading
Cases and Statutes Cited