Whitney v. California (1927)
Background
In 1919 California passed the Criminal Syndicalism Act, which made membership illegal
in an organization that advocates commission of crimes as a means of effecting political
change. The term “criminal syndicalism” is defined as “any doctrine or precept
advocating, teaching or aiding and abetting the commission of crime, sabotage . . . or
unlawful acts of force and violence or unlawful methods of terrorism as a means of
accomplishing a change in industrial ownership or control, or effecting any political
change.”
Charlette Whitney, a member of the Communist Labor Party of California, was indicted
for having violated the Criminal Syndicalism Act by having taken part in organizing the
party and being a member of it. At her trial, the Communist Labor Party was found to
have been organized to advocate, teach, and abet criminal syndicalism. Whitney was
convicted and sentenced to prison. Her conviction was upheld in the District Court of
Appeals. Whitney then appealed her conviction to the Supreme Court on the grounds that
she had been denied her Fourteenth Amendment rights of due process, including her right
of free speech.
Constitutional Issue
In the case of Schenck v. United States, the Supreme Court adopted the clear and
present danger principle as the basis for deciding whether, under certain circumstances, a
law banning certain kinds of speech could be considered constitutional. The Schenck
case, however, arose when the United States was involved in World War I. Would the
same principle apply when the constitutionality of a law that banned certain kinds of
speech in peacetime was challenged? The Court had decided that a federal law of this sort
was valid in the case of Gitlow v. United States in 1925. In that case the Court had
invoked not the clear and present danger principle, but a new one, called the bad
tendency doctrine. Now, two years later, the Court had to decide whether the California
Criminal Syndicalism Act could limit free speech as it did without violating a person’s
constitutional rights under the due process provision of the Fourteenth Amendment.
The Court’s Decision
The Court upheld Whitney’s conviction by declaring the California law constitutional.
Justice Edward Sanford wrote the Court’s opinion finding that California’s Syndicalism
Act as applied in this case was not “. . . repugnant to the due process clause as a restraint
of the rights of free speech, assembly, and association. ”He invoked the bad tendency test
as the standard by which to evaluate speech cases. He held that “. . . the freedom of
speech which is secured by the Constitution does not confer an absolute right to speak,
without responsibility, whatever one may choose, or an unrestricted and unbridled license
giving immunity for every possible use of language and preventing the punishment of
those who abuse this freedom, and that a State in the exercise of its police power may
punish those who abuse this freedom by utterances inimical to the public welfare, tending
to incite to crime, disturb the public peace, or endanger the foundations of organized
government and threaten its overthrow by unlawful means. . . .” He added that “united
and joint action involves even greater danger to the public peace and security than the
isolated utterances and acts of individuals. . . .”
Justice Louis D. Brandeis, joined by Justice Holmes, issued a concurring opinion in
which he agreed with the Court’s decision for technical reasons, but forcefully invoked
the clear and present danger principle. He pointed out, “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 imposed by the legislature. . . .” In this
case, however, he noted that Whitney had not claimed that there was no clear and present
danger, and there was evidence from which a jury could find that such a danger existed.
He wrote: “To courageous, self-reliant men, with confidence in the power of free and
fearless reasoning applied through the processes of popular government, no danger
flowing from speech can be deemed clear and present, unless the incidence of the evil
apprehended is so imminent that it may befall before there is opportunity for full
discussion. If there be time . . . to avert the evil by the process of education, the remedy to
be applied is more speech, not enforced silence.” He added, “The fact that speech is
likely to result in some violence or in destruction of property is not enough to justify its
suppression. There must be the probability of serious injury to the state.”
The Court’s decision in the Whitney case was overruled in 1969 in Brandenburg v.
Ohio.
Questions for Analysis and Debate
1. Do you think Charlette Whitney had the right to say whatever she wanted, even if her
words provoked violence?
2. Can you think of a situation when a person’s right to free speech should be suppressed for
any reason?
3. Choose a side in this case to argue for. Choose to argue for Charlette Whitney or the state
of California. Once you have chosen a side, make a list of arguments for your side of the
case. As a class, split up sides and debate this issue. Was the Court justified in upholding
Whitney’s conviction? Should Whitney’s right to free speech have been protected in this
case?