Richard Nisley

Speaking Freely: Whitney v. California and American Speech Law
History - American Released - Sep 30, 2018
At the heart of Whitney v. California is the story of two remarkable people. One was a wealthy heiress concerned with the deplorable working conditions and minuscule pay of factory workers across the country, and the other was a Supreme Court justice devoted to protecting the right of free speech. In 1920, Anita Whitney, a “patrician radical,” was prosecuted in a California court for criminal syndication, and appealed her case all to the way to the U.S. Supreme Court where, in a landmark opinion, Justice Louis Brandeis argued that freedom of speech is an essential precondition of democracy.

The author of "Speaking Freely: Whitney v. California," Philippa Strum, recounts their remarkable stories in this very readable book that belongs on the same shelf with “Gideon’s Trumpet” and “Civil Rights on Trial: New York Times v. Sullivan.” Writes the author: “We may think of law as a matter of courts and judges and doctrines, but it begins as the story of human beings and their attempts to make sense of and to organize their world.” If you have but the slightest interest in the First Amendment or what it means to be an American, I heartily recommend this book. The following is from my review for

Born in 1867 to a well-to-do California family, neither wealth nor a Wellesley College education brought satisfaction to Anita Whitney. Horrified by what she saw in the slums of Chicago, New York and Boston, she became depressed. Wanting to do something about the plight of workers and their families—many of them ill-housed, ill-clad and malnourished immigrants—she tried social work and concluded that social work alone was not enough. Believing they offered tangible solutions, she joined the Socialist Party in 1914, and moved from its left-wing faction into the Communist Labor Party in 1919. She also identified with but did not join the ultra-radical Industrial Workers of the World (the I.W.W., also known as “the Wobblies”). This was the period of the Red Scare during and after Word War I, when it seemed a communist lurked in every shadow and revolution was imminent. Worker unrest was common and often spilled over into riots and violence, including the bombing of the Los Angeles Times Building, which was blamed on the Wobblies. It was in this climate of fear that the California legislature passed a bill that criminalized any spoken, written, or printed words as well as “personal conduct” that “advocates, teaches or aids and abets criminal syndication.”

In Oakland, where she lived, Whitney was identified as a Wobbly and watched closely by police. After giving a speech in a downtown hotel to the League of Americans (on “The Negro Problem in the United States”), she was promptly arrested and ordered to stand trial on five counts under the criminal syndication act. The trial that ensued was “a mockery of due process,” writes the author. Whitney was convicted and ordered to serve from one-to-seven years in the notorious San Quentin state prison. The verdict was appealed, but each of the appellate courts affirmed the trial court’s verdict. The U.S. Supreme Court heard oral arguments twice before agreeing to review the case.

Enter Louis Brandeis. He, too, was concerned with the woeful working conditions and minuscule pay of factory workers across the country. Prior to his appointment to the Supreme Court, he performed free legal services for those who could not afford an attorney, which earned him the sobriquet, “The People’s Lawyer.” Not knowing about Whitney’s arrest but well aware of the popular panic and government crackdown, he was appalled by the events sweeping the nation, and compared the Red Scare to the reign of terror led by the Spanish Inquisition official Tomas de Torquemada. He told a law clerk he was “simply deeply humiliated and filled with a sense of sin that we with the greatest possibilities of any people should waste ourselves on these age-old methods of oppression.”

As Whitney’s case moved through the appellate court system, Brandeis was retooling his ideas about free speech. His changing view can be traced in the minority opinions of Shaefer v. United States, Pierce v. United States, Gilbert v. Minnesota, and Milwaukee Publishing v. Burleson. In the book, Chapters Five (“Thinking Through Free Speech”), Six (“Public Discussion Is a Political Duty”) and Seven (“How Free Should Speech Be?”) analyze the evolution of Brandeis’ thinking. Whitney v. California proved to be the culmination of Brandeis’ analysis.

The High Court ruled against Anita Whitney and, ironically, Brandeis’ opinion concurred with that ruling. Why? Because Whitney’s lawyers had not argued that the statute was an unconstitutional infringement on speech that presented no clear and present danger to the state, which were the grounds on which Brandeis’ would have overruled the conviction. That being the case, he felt constrained to follow the Court’s rule that it would not decide a case on the basis of an argument not made by the defense attorneys. However, that did not stop him from writing an eloquent defense of speech that was so pervasive the governor of California cited it in pardoning Whitney.

Writes the author: “The Whitney v. California opinion is an extraordinary expression of faith in ideas and, equally, in the assumption that ultimately people will choose wisely in a democratic state that encourages the articulation of ideas. Brandeis believed absolutely in airing all ideas. Nonetheless, what his opinions in these cases demonstrate is his certainty that the channels of communication had to be open to even the most heinous ideas, for only through education and free discussion could such ideas be negated.”

In the Epilogue, the author concludes: “Free speech became something of a mantra for Anita Whitney and, as well, for Louis Brandeis. In their very different ways they played a major role in creating the speech jurisprudence that is now one of the hallmarks of the American political system. One can only imagine that they would both be pleased.”

I also recommend you read “Brandeis on Democracy” (edited by the author) which includes Brandeis’ complete concurring opinion written for Whitney v. California.

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