None of the appellant’s claims struck a chord with the California court of appeal. A three-judge bench unanimously upheld Whitney’s conviction on April 25, 1922.[60] Running merely five paragraphs, the opinion largely relied on California Supreme Court precedent[61] to reject the appellant’s due process claims. The only memorable section of the opinion was the court’s depiction of Whitney’s purposes, if only because of the opinion’s gratuitous character assassination:
That this defendant did not realize that she was giving herself over to forms and expressions of disloyalty and was, to say the least, lending her presence and the influence of her character and position to an organization whose purposes and sympathies savored of treason, is not only past belief but is a matter with which this court can have no concern, since it is one of the conclusive presumptions of our law that a guilty intent is presumed from the deliberate commission of an unlawful act.[62]
The worst fears of her appellate counsel had come true: Unless this appellate ruling were overturned, Whitney had been tried and convicted, and her conviction might stand, “not for any act of her own,” but because others with whom she was not proven “to have had the slightest dealings started fires and carried poisons in other parts of the State.”[63] The California Supreme Court denied Whitney’s petition for review[64] without issuing an opinion.[65]
Despite the slim chances
for any case to be considered by the United States Supreme Court, there were
good reasons why it might be interested in Whitney v. California.
The case had the potential to make new law. The Court had yet to decide
whether the First Amendment rights of political speech and association applied
against the states through the Fourteenth Amendment; it had yet to hold state
regulation of expressive liberties to a higher standard than reasonableness; and
it had yet to determine the circumstances in which a member of an organization
should be held responsible for the group’s unlawful conduct.
