Hindsight: 84 Years Ago

by Thomas L. Libby

In May 1927, on a writ of error, the U.S. Supreme Court affirmed the conviction of a San Francisco activist for violating California's Criminal Syndicalism Law, which made it illegal to advocate unlawful force to effect political change (Whitney v. California, 274 U.S. 357 (1927)). The Court found Charlotte Anita Whitney's membership in the Communist Labor Party (CLP) to be felonious advocacy of violent activism. (She was eventually pardoned by Gov. Clement C. Young.)

Whitney had broken away from the Socialist Party of America to champion communism as patriotic, and she was arrested in Oakland after giving a speech in November 1919.

Whitney was a pioneering suffragette, U.S. Supreme Court Justice Stephen J. Field's niece, and said to be a descendant of Mayflower pilgrims. The Alameda County prosecutor, finding Whitney to have a conveniently high profile, argued that her CLP membership gave leverage to Bolshevism. The defense unsuccessfully asserted Fourteenth Amendment claims to First Amendment freedoms.

Seditious speech law was then guided by Schenck v. United States (249 U.S. 47 (1919)); Justice Oliver Wendell Holmes had famously explained that subversive expressions enjoyed no First Amendment protection when they create "a clear and present danger" of bringing about "substantive evils that Congress has a right to prevent."

Whitney partly refined Schenck by emphasizing an imminence requirement, but it is best remembered for Justice Louis Brandeis's landmark concurrence, which expanded Holmes's concept of the "marketplace of ideas.

The Court later overruled Whitney (Brandenburg v. Ohio, 395 U.S. 444, 449 (1969)), holding that the government couldn't punish the Ku Klux Klan's mere advocacy of violence unless it intended to incite and was likely to produce imminent lawless action

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