It is a long and largely overlooked fact: what Brandeis did in Whitney must be viewed against the backdrop of what he did in Ruthenberg v. Michigan, a 1927 unpublished First Amendment case.  In his Ruthenberg dissent, Brandeis first introduced the lofty free-speech principles that later found their way into his Whitney concurrence.  More important for our purposes, however, is the irony that the far more radical creed, conduct, and associations of Charles Ruthenberg won Brandeis’ First Amendment imprimatur, whereas the relatively benign behavior and associations of Anita Whitney did not; and that similar criminal syndicalism prosecutions resulted in different votes by Brandeis.  Why is this so?

     The answer to that question is tied to the fact that the First Amendment story of Anita Whitney is inextricably linked to that of Charles Ruthenberg.  And a fascinating story it is, both in law and history.  It involves, in various ways, an array of characters ranging from a U.S. Supreme Court Justice (James McReynolds) to a lawyer for the Hearst newspapers (John Francis Neylan) to two civil liberties appellate lawyers (Walter Pollak and Walter Nelles) to a Brandeis law clerk (Walter Landis) to an Alameda County prosecutor (Earl Warren) and finally to a California Governor (Clement Calhoun Young).  More significantly, this story establishes that generations of lawyers and scholars remained oblivious to the obvious, and let Brandeis’ rhetoric (albeit enlightened) divert them from what they might otherwise have noted about the law.  Finally, this story shows how, even as Brandeis sought to justify his concurrence on procedural grounds, he could not help but conclude that Ms. Whitney’s conviction had to be sustained on the merits.