1927 May 16

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).

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. An 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

Find a Day

Abortion Rights ACLU african-americans Alice Paul anti-communism Anti-Communist Hysteria Birth Control Brown v. Board of Education Censorship CIA Civil Rights Civil Rights Act of 1964 Cold War Espionage Act FBI First Amendment Fourteenth Amendment freedom of speech Free Speech Gay Rights Hate Speech homosexuality Hoover, J. Edgar HUAC Japanese American Internment King, Dr. Martin Luther Ku Klux Klan Labor Unions Lesbian and Gay Rights Loyalty Oaths McCarthy, Sen. Joe New York Times Obscenity Police Misconduct Same-Sex Marriage Separation of Church and State Sex Discrimination Smith Act Spying Spying on Americans Vietnam War Voting Rights Voting Rights Act of 1965 War on Terror Watergate White House Women's Rights Women's Suffrage World War I World War II Relocation Camps


Tell Us What You Think

We want to hear your comments, criticisms and suggestions!