C. Changing Horses in Mid-Stream
Even before Charles Ruthenberg died and his writ of error was dismissed, the Court fell along the same lines in its treatment of Whitney. Seven justices intended to dispose of Whitney on the merits, presumably along the same lines of reasoning as in Ruthenberg,[116] and Justices Brandeis and Holmes planned to concur in the judgment alone. Brandeis prepared a lackluster two-paragraph opinion (Appendix B[117]) largely contesting the majority’s assumption of jurisdiction. After noting the petitioner’s failure to raise the issue of clear and present danger in the state courts, Brandeis obliquely declared: “[T]here was evidence on which the court or jury might have found that such [a clear and present] danger existed.” Accordingly, he conceded that “the judgment of the state court cannot be disturbed.”
Had Brandeis left his draft concurrence in Whitney untouched, the history of First Amendment law would have been deprived of “one of the great majestic, stirring tributes to freedom of expression.”[118] But he did not. He seized much of his rhetoric and reasoning in Ruthenberg, and reworked it. Sometimes lifting whole passages with minor modifications, sometimes rearranging phrases and sentences, and sometimes inserting new observations, Brandeis infused brilliance, vitality, and eloquence into his Whitney opinion.
On May 16, 1927 – more than five years after the start of Whitney’s trial – the Court issued its decision in Whitney v. California.[119] Whitney’s conviction was upheld by a unanimous Court. Justice Sanford, the author of Gitlow, wrote for the majority of seven justices who viewed Whitney as tantamount to a Gitlow “bad tendency” case.[120] Little need be said here about Sanford’s opinion, other than it unusually generous in its grant of jurisdiction. So much so that Sanford felt obliged to declare: “[T]he usual course here taken to show that Federal questions were raised and decided below is not to be commended . . . .”[121] In contrast, the opinion was ungenerous in its grant of free-speech protection. The First and Fourteenth Amendments notwithstanding, the opinion was highly deferential to state statutory determinations of dangerous expression. Such determinations “must be given great weight. Every presumption is to be indulged in favor of the validity of the statute . . . .”[122] Only patently unreasonable laws or laws unreasonably applied[123] could be set aside as violations of due process.
Brandeis’ concurrence, joined by Justice Holmes, rejected the “bad tendency” test in favor of the “clear and present danger” standard. He perceived Sanford’s constitutional analysis as devoid of any meaningful First Amendment restraints; thus, he could say: “I am unable to assent to the suggestion in the opinion of the court that assembling with a political party, formed to advocate the desirability of a proletariat revolution by mass action at some date necessarily far in the future, is not a right within the protection of the Fourteenth Amendment.”[124] On the procedural side of the ledger, Brandeis rejected the majority’s assumption of jurisdiction. “Our power of review in this case is limited . . . to the particular claims duly made below, and denied.”[125] Finding no clear and present danger issue raised by Whitney’s counsel in the state court proceedings, Brandeis added: “We lack here the power occasionally exercised on review of judgments of lower federal courts to correct in criminal cases vital errors, although the objection was not taken in the trial court. . . . Because we may not inquire into the errors now alleged, I concur in affirming the judgment of the state court.”[126]
