Instead, Brandeis faults Whitney’s counsel for failing to raise a clear and present danger claim at her state court trial. But could that fault be fairly charged? At the time of Whitney’s trial, neither the First Amendment nor the Supreme Court’s “clear and present danger” test had been applied to the states. Whitney’s trial took place in early 1920. But as late as 1922, the Court insisted that “neither the Fourteenth Amendment nor any other provision of the Constitution of the United States imposes upon the states any restrictions about ‘freedom of speech.’”[149] Dicta to the contrary did not come until June of 1925 in Gitlow v. New York,[150] and the holding of Stromberg v. California,[151] explicitly applying the First Amendment to the states through the Fourteenth Amendment did not come until May of 1931. And the First Amendment right of assembly that was at the core of the Whitney case was not imposed on the states until 1937.[152]
Given the state of the law, the “clear and present danger” test was not likely to be invoked by Whitney’s defense counsel, and the California courts would not likely have granted a request for such an instruction.[153] Thus, Brandeis’ declaration that Anita Whitney “might have required that [the First Amendment’s “clear and present danger”] issue be determined either by the court or the jury” seems implausible.[154]
So, why did he do it? Charles Ruthenberg’s death on March 2, 1927, must have frustrated Brandeis. The formidable dissent he had drafted for Ruthenberg stood to be lost to history. The solution might have seemed obvious: adapt the Ruthenberg dissent to the facts in Whitney. But Landis’ memorandum powerfully argued that the Court lacked jurisdiction in Whitney. Recall that Brandeis originally had prepared a two-paragraph opinion dispensing with Whitney’s appeal for procedural reasons. If he continued down that course after Ruthenberg’s death, there would then have been no reason for him to reach the First Amendment. When the Whitney majority leaped over the federal jurisdictional hurdles to reach the merits of the case[155] (and reinvigorate the “bad tendency” test[156]), Brandeis felt obligated to counter both their jurisdictional and substantive arguments. The result was his curious concurrence in Whitney.
