B.  Substance

The links between the mild-mannered political reformist and the hot-headed IWW radicals were so tenuous as to be farcical.  But Brandeis chose to lend his name to that farce.  Consider the following passage from his concurrence: “there was other testimony which tended to establish the existence of a conspiracy, on the part of members of the International Workers of the World, to commit present serious crimes, and likewise to show that such a conspiracy would be furthered by the activity of the society of which Miss Whitney was a member.”  In other words, there was evidence in the record that might establish that: (1) some extremists in the IWW conspired to commit immediate and dangerous illegal acts; (2) that the Communist Labor Party of America “furthered” that conspiracy by recognizing in its National Program the “long and valiant struggle and heroic sacrifices” of the IWW; (3) that the Communist Labor Party of California additionally “furthered” that conspiracy by adopting the National Program of the Communist Labor Party of America; and (4) that Anita Whitney could be prosecuted for her otherwise lawful membership and innocent participation in the Communist Labor Party of California.^[157] 

      Under that application of the California statute, the “evils” of the IWW are imputed to Anita Whitney in such a way that its criminal acts stain her.  She is sullied by her mere assembly with the CLPC, regardless of her own intent in assembling and regardless of whether or not that assembly meaningfully furthers the conspiratorial schemes of the IWW.  This theory of culpability posits, with Brandeis’ approval, that if the IWW’s activities produce an imminent danger of serious violence, then responsibility for that danger “flows” to Whitney.  Such logic removes any semblance of actual causation from the constitutional equation.  That Brandeis understood this problem is evidenced by Ruthenberg dissent, where he wrote that there must be a “proximate relation of cause to consequence of which alone the law commonly takes account.”  That language did not find its way, however, into his Whitney concurrence.  To the extent that Brandeis abandoned that concept in Whitney, his heroic First Amendment formulation collapses into a variation of the majority’s “bad tendency” test.