Historic Brandeis Opinion in “Whitney v. California”
Charlotte Anita Whitney was a pacifist, women’s rights advocate, and Socialist before and during World War I. Always referred to as Anita Whitney, she later became a member of the American Communist Party. Always known as Anita Whitney, she was arrested on November 28, 1919, after giving a speech in Oakland, California, on behalf of the Communist Labor Party. She was prosecuted for violating the California Criminal Syndicalism Law. The appeal of her conviction finally reached the Supreme Court and, on this day, the Court upheld her conviction.
The most important and influential part of the decision, however, was Justice Louis D. Brandeis’ opinion. Although a concurrence, it was essentially a dissent that endures as one of the most eloquent opinions on freedom of speech (see the excerpt below). Most important, Brandeis argued that speech could be suppressed only if there was an “imminent” danger that evil would result.
A majority of the Supreme Court finally caught up to Brandeis on June 9, 1969 in the important Brandenburg v. Ohio decision.
Anita Whitney was pardoned by the Governor of California on June 20, 1927. She remained a committed and active Communist until she died at age 87 in 1955. In 1936 she was named national chairwoman of the Communist Party. And in 1949 at age 82, frail because of her age, she was carried to a rally to protest the Smith Act prosecutions of the top Communist Party leaders.
Justice Brandeis: “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 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 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.
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.”
Learn about the case: Philippa Strum, Speaking Freely: Whitney v. California and American Speech Law (2015)
Read a biography of Brandies: Jeffrey Rosen, Louis D. Brandeis: American Prophet (2016)
Learn more about Justice Brandeis: Melvin I. Urofsky, Louis D. Brandeis: A Life (2009)
Watch a short documentary on Brandeis: http://www.youtube.com/watch?v=XwDP5vWXd3g