From the tenor of the opinion . . . one would anticipate
that Justice Brandeis must end up in dissent.
In fact, however, he concurs in affirming the conviction
of Miss Whitney.  This outcome leaves us with a
train of puzzles as to what he has been saying.

-- Harry Kalven, Jr.[1]

     On May 16, 1927, a unanimous Supreme Court affirmed the conviction of Charlotte Anita Whitney.[2]  The patrician social activist was known both for her family’s privileged status and for her allegiance to Leftist principles.  She was a member of California’s Communist Labor Party, which led to her arrest for organizing and participating in a group that advocated criminal syndicalism.  After the Court’s ruling, the 59 year-old dissident faced up to 14 years in prison.  Only a gubernatorial pardon would change her fate. 

     Justice Louis Brandeis – the great dissenter, advocate of civil liberties, and champion of free speech – joined in that judgment.  Nonetheless, he penned a remarkable concurring opinion, hailed as “a brilliant exposition of the new philosophical defense of political dissent.”[3]  The opinion has been celebrated ever since as one of the most conceptually influential and rhetorically powerful justifications for First Amendment liberties.  That seminal concurrence has been described as “arguably the most important essay ever written, on or off the bench, on the meaning of the first amendment,”[4] and as “rank[ing] among the most frequently cited [opinions] ever written by a Supreme Court Justice.”[5]

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