Brandeis’ memorable concurrence has been the focus of much scholarly analysis.  For example, in 1988, Vincent Blasi authored a Talmudic-like line-by-line exegesis of most of Brandeis’ words.^[6]  Subsequently, other commentators such as Bradley Bobertz,^[7] Ashutosh Bhagwat,^[8] David Rabban,^[9] and Cass Sunstein^[10] wrote of the significance of the Whitney concurrence in the evolution of First Amendment theory and doctrine.  And still others like Thomas Emerson^[11] and Rodney Smolla^[12] depicted Brandeis’ handiwork as a brilliant foreshadowing to a more promising future for freedom of speech.

     Neither these nor the many other commentaries on the Whitney case, however, have devoted serious and extended attention to the following question:  Given Brandeis’s faith in speech freedoms, why did he concur in the judgment of the Court in Whitney v. California?  To the degree that commentators have addressed that question at all, they have given variations on the same simple answer: Brandeis (joined by Holmes) concurred with the majority, “but only because the question of freedom of expression had not been raised sufficiently at trial to qualify as an issue on appeal.”^[13]  Virtually everyone has accepted, with little or no question, Justice Brandeis’ casual assertion^[14] that jurisdictional impediments necessitated his vote in the case.^[15] 

     But what if those commentators (and many others) were too credulous?  What if such jurisdictional impediments were more deliberately chosen than doctrinally compelled?  Or what if there were jurisdictional problems, but of a quite different order than Justice Brandeis had suggested?  What if Brandeis were wrong in the reasons he tendered for voting to uphold Ms. Whitney’s conviction?  Such queries raise yet larger questions: Is it possible that the Whitney case was far more complex than Brandeis’ concurrence suggested?

     Much as we admire Louis Brandeis’ eloquent and compelling First Amendment jurisprudence in Whitney, we find his jurisdictional and substantive arguments suspect.  For that matter, we find it difficult to believe that the learned Brandeis was entirely unmindful of the shortcomings of those arguments.  Given such shortcomings, we consider Brandeis’s opinion to be a most curious concurrence.  It is curious in its depiction of the facts and the law of the case, and it is equally curious when considered alongside other opinions penned by Justice Brandeis.  For those reasons, we aim to provide a more searching examination of Brandeis’s vote in Whitney.