[1] Harry Kalven, Jr., A Worthy Tradition: Freedom of Speech in America 164 (Harper & Row, 1988).
[2] Whitney v. California, 274 US 357 (1927).
[3] Mark A. Graber, Transforming Free Speech: The Ambiguous Legacy of Civil Libertarianism 100 (University of California Press, 1991).
[4] Vincent Blasi, The First Amendment and the Ideal of Civic Courage: The Brandeis Opinion in Whitney v. California, 29 William & Mary L Rev 653, 668 (1988).
[5] Bradley C. Bobertz, The Brandeis Gambit: The Making of America’s “First Freedom,” 1909-1931, 40 William & Mary L Rev 557, 645 (1999) (footnote omitted).
[6] See Blasi, 29 William & Mary L Rev at 668-697 (cited in note 3).
[7] See Bobertz, 40 William & Mary L Rev at 641-647 (cited in note 4).
[8] See Ashutosh A. Bhagwat, The Story of Whitney v. California: The Power of Ideas, in Michael C. Dorf, ed., Constitutional Law Stories 418-520 (Foundation Press, 2004).
[9] See David M. Rabban, Free Speech in Its Forgotten Years 365-371 (Cambridge University Press, 1997).
[10] See Cass R. Sunstein, Democracy and the Problem of Free Speech 26-28 (The Free Press, 1993).
[11] See Thomas I. Emerson, The System of Freedom of Expression 106 (Vintage Books, 1970).
[12] See Rodney A. Smolla, Free Speech in an Open Society 105-106 (Knopf, 1992).
[13] Juliet Dee, Whitney v. California, in Richard A. Parker, ed., Free Speech on Trial 38-39 (University of Alabama Press, 2004) (emphasis added).
[15] See, e.g., Daniel A. Farber, The First Amendment 61 (Foundation Press, 1998); Martin Shapiro, Whitney v. California, in Leonard W. Levy, Kenneth L. Karst, and Dennis J. Mahoney, eds., The First Amendment: Selections from the Encyclopedia of the American Constitution 135 (Macmillon, 1990); Philippa Strum, ed., Brandeis on Democracy 238 (University of Kansas, 1995) (Brandeis wrote a concurrence rather than a dissent because Whitney’s lawyers had not argued that the statute was an unconstitutional limitation on speech that presented no clear and present danger to the state, which were the grounds on which he would have overturned the conviction. Brandeis felt constrained to follow the Court’s rule that it would not decide a case on the basis of an argument not made by the attorneys.”); Kermit L. Hall, William M. Wiecek, and Paul Finkelman, American Legal History: Cases and Materials 419 (Oxford University Press, 1991).
[16] This title was coined by the Chicago Daily Tribune in a report on Ruthenberg’s arrest in Chicago after a telegram informed the Illinois authorities that he had been indicted in New York for violation of the state’s criminal syndicalism act. See Most Arrested Red “in America” Is Seized Again, Chicago Daily Tribune, December 2, 1919, p. 5 (“It is said at present he has more than sixty indictments pending against him.”).
[17] The essential facts in this paragraph are substantiated in the two most important biographical works on Charlotte Anita Whitney. See Al Richmond, Native Daughter: The Story of Anita Whitney 17-21 (Anita Whitney 75th Anniversary Committee, 1942); Lisa Rubens, The Patrician Radical: Charlotte Anita Whitney, 65 California History 158 , 160 (1986). See also Clare Shipman, The Conviction of Anita Whitney, 110 The Nation 365 (1920).
[18] The essential facts in this paragraph derive from the major biographical work on Charles Ruthenberg. See Oakley C. Johnson, The Day Is Coming: Life and Work of Charles E. Ruthenberg 7-15 (International Publishers, 1957). Lesser works on Ruthenberg include Elizabeth G. Flynn, Debs, Haywood, Ruthenberg (Workers Library, 1939) and Jay Lovestone, Ruthenberg: Communist Fighter & Leader (Workers Library, 1927). See also Theodore Draper, American Communism and Soviet Russia: The Formative Period 13- 28, 40-57, 243-247 (Vintage Books, 1986)
[19] Quoted in Shipman, at 160 (cited in note 17).
[20] The facts on Anita Whitney’s social and civic work are substantiated in Bhagwat, at 409 (cited in note 8); Rubens, at 160-61 (cited in note 17); Shipman, at 365 (cited in note 17). See also Franklin Hichborn, The Case of Charlotte Anita Whitney 3 (unidentified publisher, 1920) (pamphlet on file with authors).
[21] The essential facts in this paragraph were derived from Johnson, at 21-25, 28, 39-41, 44-45, 70-71, 80-81, 86 (cited in note 18).
[22] Quoted in Johnson, at 103-104 (cited in note 18).
[23] The facts in this paragraph are found in Bhagwat, at 409-411 (cited in note 8); Rubens, at 161-163 (cited in note 17); Johnson, at 87-91 (cited in note 18).
[24] Quoted in Johnson, at 113 (cited in note 18).
[25] The essential facts in this paragraph were derived from id at 109-116.
[26] Quoted in id at 110.
[27] Quoted in Johnson, at 121 (cited in note 18).
[28] The essential facts in the paragraph were derived from id at 117-121.
[29] See Ruthenberg v. United States, 245 US 480 (1918).
[30] The essential facts in this paragraph were derived from Johnson, at 122-137 (cited in note 18).
[31] The facts in this paragraph are substantiated in Draper, at 17-20 (cited in note 18); Johnson, at 145-146 (cited in note 18); Richmond, at 76-77, 110 (cited in note 17); Rubens, at 163-164 (cited in note 17); Blasi, at 3 (cited in note 4).
[32] The facts in this paragraph are substantiated in Richmond, at 77-78 (cited in note 17); Blasi, at 3-4 (cited in note 4); Shipman, at 365 (cited in note 17); Friend William Richardson, Case of Anita Whitney 2-3 (California gubernatorial papers, November 28, 1925) (on file with authors). The official Communist Labor Party songbook included such wildly outlandish musical propaganda as the following: “Onward, Chrisian Soldiers! Rip and tear and smite! / Let the gentle Jesus bless your dynamite . . . . Onward, Christian Soldiers! Eat and drink your fill. / Rob with bloody fingers, Christ O.K.’s the bill.”
[33] The facts in this paragraph were drawn from Richmond, at 83-89; Hichborn, at 11 (cited in note 20); Oakland Veterans Raid Communists, New York Times, November 13, 1919, p. 1.
[34] For an annotated text of California criminal syndicalism act, see 23 California Jurisprudence 1101-1133.
[35] The essential facts in this paragraph were drawn from Richmond, at 82-83, 88 (cited in note 17); Richardson, at 1 (cited in note 32); Woodrow C. Whitten, Trial of Charlotte Anita Whitney, 15 Pacific Historical Review 286, 292 n. 36 (1946).
[36] The essential facts in this paragraph derived from Johnson, at 147-148 (cited in note 18); Most Arrested Red “In America,” at 5 (cited in note 20); Two Convicted of Anarchy: Ferguson and Ruthenberg Given State’s Prison Sentences, Washington Post, October 30, 1920, p. 4; Radicals’ Release Ordered by Court, New York Times, April 20, 1922;
[37] The essential facts in this paragraph were drawn from Richmond, at 90-96 (cited in note 17); Reubens, at 163-164 (cited in note 17); Shipman, at 365-366 (cited in note 17); Anna Porter, The Case of Anita Whitney, The New Republic, July 6, 1921, pp. 165-166.
[38] The essential facts in this paragraph derived from Richmond, at 96-98 (cited in note 17); Porter, at 165-166 (cited in note 42); Shipman, at 365-366 (cited in note 17); Brief for Plaintiff-in-Error, Whitney v. California, U.S. Supreme Court October Term, 1925 – No. 10 (September 4, 1925), pp. 7-9 (available at http://curiae.law.yale.edu).
[39] Indeed, the jury’s seclusion did cost Alameda County a pretty penny, although Judge Quinn might never have imagined the extent of the damages. One account puts it colorfully: “[The jury] left Alameda County aghast with a bill of $3,000 [recall: in 1920 dollars] to cover its expenses. . . . [T]hose who did the condemning ate hearty breakfasts, dinners and suppers, smoked fine cigars, kept themselves well groomed [with expensive haircuts, shaves, and toilet articles], dipped into popular magazines at random. . . . One paper commented: ‘[N]ext time it is anticipated that a trip to Palm Beach or the Canadian Rockies may be thrown in as a sort of diversion.’” Richmond, at 113-114 (cited in note 17).
[40] The facts in this paragraph are substantiated in Richmond, at 98-101 (cited in note 17); Shipman, at 366 (cited in note 17; Whitten, at 288 (cited in note 35).
[41] Quoted in id.
[42] Shipman, at 366 (cited in note 17). See also Brief for Plaintiff-in-Error, at 10 (cited in note 38).
[43] The essential facts in this paragraph were derived from id at 10-11; Whitten, at 288-289 (cited in note 35).
[44] The essential facts in this paragraph were derived from Richmond, at 109-112 (cited in note 17); Whitten, at 291-292 (cited in note 35); Shipman at 366 (cited in note 17); Richardson, at 11 (cited in note 32); Brief for Plaintiff-in-Error, at 10-17 (cited in note 38). It should be noted that the U.S. Supreme Court record in Whitney v. California (on file in the Supreme Court library) contains no complete transcript of the entire trial, although it does contain transcripts of excerpted testimony by a substantial number of the prosecution’s witnesses.
[45] The resolution read in relevant part: “[T]he Communist Labor Party proclaims that the term ‘direct action’ is not associated with terrorism, violence or any other perverted meaning which capitalist lawmakers have given this phrase, but by it is meant such united action by the workers on the job which they may use in forcing concessions from the employing class directly without the use of the capitalist state.” Cited in Whitten, at 293 n. 39.
[46] The essential facts in this paragraph derived from Whitten, at 292-293 (cited in note 35); Shipman, at 366 (cited in note 17).
[47] See Brief for Plaintiff-in-Error, at 15-17 (cited in note 38).
[48] The citations from Alma Reeds’ narrative in this paragraph and the next were taken from Richmond, at 114-116 (cited in note 17).
[49] The two newspaper quotations were reprinted in Reubens, at 164 (cited in note 17).
[50] The facts in this paragraph derived from Richmond, at 119-123 (cited in note 17).
[51] Paul L. Murphy, The Constitution in Crisis Times: 1918-1969, 85-86 (Harper & Row, 1972). But see Roger W. Lotchin, John Francis Neylan: San Francisco Irish Progressive, in The San Frisco Irish: 1850-1976, 86-110 (Smith McKay Printing Co., 1978). Even so, this “progressive” was highly critical of FDR: “[T]he nation and its people have been brought to the verge of disaster by President Roosevelt.” Addresses by John Francis Neylan: The Politician, The Enemy of Mankind (privately printed pamphlet, 1938).
[52] Appellant’s Opening Brief in the California District Court of Appeal, First Appellate District – Division One, The People of the State of California v. Charlotte A. Whitney, Criminal No. 907 (July 21, 1920), reprinted as Exhibit A in Brief for Plaintiff-in-Error (cited in note 38); Appellant’s Closing Brief in the California District Court of Appeal, First Appellate District – Division One, The People of the State of California v. Charlotte A. Whitney, Criminal No. 907 (April 8, 1921), reprinted as Exhibit A in Brief for Plaintiff-in-Error (cited in note 38).
[53] Appellant’s Opening Brief, at i (cited in note 52).
[54] Id at iii-xviii (cited in note 52).
[55] Id at xix. See generally id at xix-xx.
[56] Appellant’s Closing Brief, at xxiv (cited in note 52). See generally id at xxiv-xxviii.
[57] Id at xlvii.
[58] Supplemental Brief for Appellant in the California District Court of Appeal, First Appellate District – Division One, The People of the State of California v. Charlotte A. Whitney, Criminal No. 907 (July 21, 1920), reprinted as Exhibit C in Brief for Plaintiff-in-Error (cited in note 38).
[59] Id at lvii-lviii.
[60] People v. Whitney, 57 Cal App 449, 207 P 698 (1922).
[61] See People v. Taylor, 187 Cal 378, 203 P 85 (1921) (upholding a criminal syndicalism conviction on the basis that sufficient evidence existed for the jury to find that the Communist Labor Party of California, of which the defendant was an organizer and member, constituted a syndicalist group within the meaning of the California law.)
[62] 57 Cal App at 452, 203 P. at 699.
[63] Appellant’s Opening Brief, at xxi (cited in note 52).
[64] Appellant’s Petition for a Hearing by the Supreme Court, The People of the State of California v. Charlotte A. Whitney (June 3, 1922) (available at http://curiae.law.yale.edu).
[65] Brief for Plaintiff-in-Error, at 2 (cited in note 38).
[66] 268 US 652 (1925) (upholding conviction of a radical Socialist, who assisted the publication of the Left Wing Manifesto and the organization of the Communist Labor Party of America, under the New York criminal anarchy act).
[67] 287 US 45 (1932). See generally Dan T. Carter, Scottsboro: A Tragedy of the American South (Louisiana State University Press, 2nd ed, 1984).
[68] See W.H. Pollak Dies; Leader at Bar, 53, New York Times, October 3, 1940, p. 25. First Amendment scholar Zechariah Chafee remarked of Pollak after his death: “It is hard to realize that a person so much alive as Walter Pollak can be dead. . . . He radiated generous enthusiasm for justice, delight in mental activity, unexpected flashes of wit. We have lost him when we need him most.” Zechariah Chafee, Jr., Walter Heilprin Pollak, The Nation, October 12, 1940, pp. 318-319. For an account by his son (later Dean of the Yale and University of Pennsylvania Law Schools and a federal judge), see Louis H. Pollak, Advocating Civil Liberties: A Young Lawyer Before the Old Court, 17 Harvard Civil Rights-Civil Liberties L Rev 1 (1982).
[69] Walter Nelles, Espionage Act Cases: With Certain Others on Related Points (National Civil Liberties Bureau, 1918). Nelles also edited Law and Freedom Bulletins (National Civil Liberties Bureau, 1920), including discussion of the 1917-1920 prosecution and appeal of IWW members in Chicago under the federal Selective Service and Espionage Acts. See Haywood v. United States, 268 F. 795 (1920).
[70] See Prof. Walter Nelles of Yale Law School: An Expert on Labor Injunction and Former Lawyer Here Is Dead at Age of 53, New York Times, April 1, 1937, p. 23.
[71] Petition for Rehearing, Whitney v. California, US Supreme Court October Term, 1925 – No. 10, p. 2 (available at http://curiae.law.yale.edu).
[72] See Philip B. Kurland and Gerhard Casper, eds., 23 Landmark Briefs and Arguments of the Supreme Court of the United States: Constitutional Law 530 (University Publications of America, 19__).
[73] Johnson, at 149 (cited in note 18).
[74] The essential facts in this paragraph derived from Johnson, at 149 (cited in note 18); Gitlow, Anarchist, Gets Limit Sentence, New York Times, February 12, 1920, p. 15; Grand Jury to Pass upon Radicals Here, New York Times, July 14, 1919, p. 15; New York Judge Orders Two Chicago Reds to Prison Cells, Chicago Daily Tribune, October 30, 1920, p. 12; Two Convicted of Anarchy, Washington Post, October 30, 1920, p. 4; Lawyer, A Convict, Argues for Release, New York Times, April 15, 1922, p. 6; Radicals’ Release Ordered by Court, New York Times, April 20, 1922, p. 15; Johnson, at 152-153 (cited in note 18); New York v. Ferguson, 234 NY 159, 136 NE 327 (1922) (reversing Ruthenberg’s conviction because the jury was wrongly allowed to infer that he was a manager or proprietor of The Revolutionary Age, and thus subject to prosecution under the New York criminal anarchy statute).
[75] The essential facts in this paragraph were drawn from People v. Ruthenberg, 229 Mich 315, 321-322; 201 N W 358, 359-360 (1924); Johnson, at 154 (cited in note 18); C.E. Ruthenberg, Head of Communists, Dead, Washington Post, March 3, 1927, p. 8.
[76] The essential facts in this paragraph derived from Johnson, at 154-156 (cited in note 18); People v. Ruthenberg, 229 Mich at 323-323; 201 NW at 360 (cited in note 75).
[77] People v. Ruthenberg, 229 Mich at 320; 201 NW at 359 (cited in note 75).
[78] The essential facts in this paragraph derived from Johnson, at 163 (cited in note 18); Accused Burns in Red Trial, New York Times, April 21, 1923, p. 15; Links Ruthenberg to Reds: “K-97” Asserts He Was a Delegate at Raided Convention, New York Times, April 24, 1923.
[79] All of the quotations in this paragraph referring to the Workers’ Party program and the adjustment committee’s resolutions derived from People v. Ruthenberg, 229 Mich at 332-333, 336-337; 201 NW at 363-365.
[80] Transcript of Record in the Supreme Court of the United States, October Term, 1926, Charles E. Ruthenberg, Plaintiff in Error v. The People of the State of Michigan, No. 44, p. 189 (filed February 19, 1925) (brief on file at the Library of the United States Supreme Court, Washington, DC).
[81] People v. Ruthenberg, 229 Mich at 337-338; 201 NW at 365.
[82] Transcript of Record, at 190 (cited in note 80).
[83] Id at 191.
[84] Rejected request no. 12 read:
You are instructed, in further definition of the doctrines of criminal
syndicalism, that the statute is directed against the teaching and
advocacy of crime, sabotage, violence and other unlawful methods of
terrorism as an immediate program of action. If you find from the
evidence that the Communist Party, at the time and place alleged, was an
organization which taught the desirability of revolutionary changes in
our social institutions, but did not teach or advocate that anyone
should proceed presently to commit acts of crime, sabotage, violence, or
terrorism, then it is not established that the assemblage in question
constituted a violation of the statute and you should declare the
respondent not guilty.
And rejected request no. 13 read:
[For there to be teaching and advocacy within the contemplation of the statute,] the time and circumstances must be such that the teaching or advocacy of the prohibited doctrines presents a clear and imminent danger that acts of crime, sabotage, violence or terrorism may result from the advocacy. If you find . . . that no circumstances have been presented in evidence making manifest a clear and imminent danger of such acts of criminal injury on account of the teachings and advocacies of the Communist Party, then your verdict should be not guilty.
Id at 199.
[85] Id at 237.
[86] Ruthenberg Files Appeal, New York Times, September 20, 1924, p. 18.
[87] In addition to the claims enumerated in the text, Ruthenberg alleged that the trial court erred by (1) overruling the defendant’s challenge to a juror; (2) denying the defendant’s motion for a bill of particulars; and (3) denying the defendant’s motion to suppress evidence found in his suitcase at the Bridgman convention on the basis that the state violated his constitutional right against a wrongful search and seizure. The Michigan Supreme Court rejected these claims with dispatch. See People v. Ruthenberg, 229 Mich at 326-331, 201 NW at 361-363.
[88] Transcript of Record, at 236 (cited in note 80).
[89] Id.
[90] Id.
[91] People v. Ruthenberg, 229 Mich at 325, 201 NW at 361.
[92] People v. Ruthenberg, 229 Mich at 323-324, 210 NW at 360.
[93] People v. Ruthenberg, 229 Mich at 331-332, 339-340; 210 NW at 363, 365-366
[94] People v. Ruthenberg, 229 Mich at 353-354; 210 NW at 370.
[95] The essential facts in this paragraph were drawn from Johnson, at 164-165 (cited in note 18); Ruthenberg Is Sentenced, Los Angeles Times, January 6, 1925, p. 1; U.S. High Court to Hear Plea of Ruthenberg, Chicago Tribune, January 23, 1925, p. 10; Ruthenberg May Win Review by High Court, New York Times, January 23, 1925, p. 2; Order Allowing Writ of Error, in Transcript of Record, at 241 (cited in note 80); Ruthenberg Out on Bail: Released Pending Appeal, He Will Speak at Lenin Meeting Here, New York Times, January 27, 1925, p. 10.
[96] The essential facts of this paragraph derive from Brief for the Plaintiff-in-Error, at 66-84 (cited in note 38).
[97] Id at 4 (omitting page numbers for the transcript of record).
[98] The essential facts in this paragraph derived from See State Act Up in Highest Court, Los Angeles Times, October 7, 1925, p. 3; Whitney v. California, 269 US 530 (1925).
[99] The essential facts of this paragraph were drawn from Woman Syndicalist Will Not Seek Pardon, New York Times, October 22, 1925, p. 7 (AP story); War Group in Whitney Case, Los Angeles Times, November 4, 1925, p. 7; Whitney Case Details Given, Los Angeles Times, November 27, 1925, p. 6; Richmond, at 131-136 (cited in note 17); Richardson at 13 (cited in note 32).
[100] Petition for Rehearing (cited in note 71).
[101] Id at 2.
[102] Briefs were filed by Whitney’s counsel and the state’s attorney reiterating the same arguments, substantive and procedural, that they had made in earlier briefs, although to some degree with stronger analysis and precedential authority. See Supplementary Brief for Plaintiff-in-Error, Whitney v. California, U.S. Supreme Court October Term, 1925 – No. 10 (available at http://curiae.law.yale.edu); Brief of Defendant-in-Error on Rehearing, Whitney v. California, U.S. Supreme Court October Term, 1925 – No. 10 (March 10, 1928) (available at http://curiae.law.yale.edu)
[103] The following summary of the Petitioner’s arguments derives Brief for Plaintiff in Error, Ruthenberg v. Michigan, U.S. Supreme Court October Term, 1925 – No. 44 (February 27, 1926), pp. 2-8, 13-14, 16-19, 21-24, 33-36, 42-46, 53 (brief on file at the Library of the United States Supreme Court, Washington, DC).
[104] The summary of the Respondent’s arguments derives from Brief for Defendant in Error, Ruthenberg v. Michigan, U.S. Supreme Court October Term, 1925 – No. 44 (April 26, 1926), pp. 6-11 (brief on file at the Library of the United States Supreme Court, Washington, DC).
[105] 268 US at 669.
[106] Id at 669-670 quoting People v. Lloyd, 304 Ill 23, 35, 136 NE 505, 512 (1922).
[107] Id at 671.
[108] Id at 672-673 (Holmes dissenting).
[109] The quotations in Brandeis’ Ruthenberg dissent that follow derived from Unpublished Draft of Brandeis Dissenting Opinion in Ruthenberg v. Michigan, dated October 1, 1926, in The Louis Brandeis Papers: Part I, 1916-1931 (Harvard Legal Manuscripts, Harvard Law School Library), microfilm reel 34, frames 00351-00360.
[110] While addressing his observations to Whitney, what David Cole said of Brandeis’ concurrence there holds equally true for his draft dissent in Ruthenberg: “As Holmes had done in Abrams, Brandeis retained the outline of the Schenck clear and present danger test, but filled it with new meaning, substituting an essentially political justification for Holmes’ quasi-economic reliance on the discovery of truth through free trade in ideas. Brandeis, who never used Holmes’ market metaphor, shifted the focus of the First Amendment from the pursuit of transcendent truth to subjective individual freedom and intersubjective political deliberation.” David Cole, Agon at Agora: Creative Misreadings in the First Amendment Tradition, 95 Yale L J 857, 888 (1986) (footnote omitted).
[111] 250 US 616, 624-631 (1919) (Holmes dissenting).
[112] Washington Post, March 3, 1927, p. 8.
[113] The facts in this paragraph derived largely from Johnson, at 177-178 (cited in note 18); Draper, at 243-247 (cited in note 18).
[114] The facts in this paragraph derived largely from Johnson, at 177-178 (cited in note 18); Draper, at 243-247 (cited in note 18); Arthur Schlesinger, Jr., Hitched to a Red Star, New York Times, Jul. 24, 1960, sec. Book Review, p. 3.
[116] We can only speculate here, since we have been unable to locate the original majority opinion in Ruthenberg and the earliest drafts of the majority opinion in Whitney. Nevertheless, given the arguments made by Justice Brandeis in his unpublished Ruthenberg dissent, it is clear that the majority had planned to reach the merits. Likewise, the unpublished early draft of Brandeis’ Whitney concurrence establishes that the majority had never planned to dismiss the case for procedural reasons.
[117] A draft of Brandeis’ original concurrence in Whitney is contained in his papers, and is virtually identical to what was set out in the final two paragraphs of the published opinion. It is reprinted as Appendix B.
[118] Smolla, at 106 (cited in note 12).
[119] 274 US 357 (1927)
[120] Enunciating what is known as the “bad tendency test,” Justice Sanford’s majority opinion in Gitlow v. New York reasoned that the state might “suppress the threatened danger in its incipiency.” He declared: “It cannot reasonably be required to defer the adoption of measures for its own . . . safety until the revolutionary utterances lead to actual disturbances of the public peace or imminent and immediate danger of its own destruction.” 268 US 652, ___ (1925).
[121] 274 US at 361.
[122] Id at 371.
[123] In the same term as the Whitney decision was rendered, a unanimous (per Justice Sanford) set aside a criminal syndicalism conviction on the grounds that the law as applied violated due process. Fiske v. Kansas, 274 US 380 (1927). The conviction of Harold B. Fiske, an IWW organizer, was reversed because it was obtained “without any charge or evidence that the organization in which he secured members advocated any crime, violence or other unlawful acts or methods as a means of effecting industrial or political changes or revolution.” Id at 387.
[124] 274 US at 379 (Brandeis concurring).
[125] 274 US at 380 (Brandeis concurring).
[126] Id.
[127] 274 US at 375.
[128] Id at 379.
[129] 249 US 47 (1919).
[130] Compare Burns v. United States, 274 US 328 (1927) (Brandeis, J., dissenting) (reviewing the record in a federal case in which the claim had not be fully raised below).
[131] Quoted in Richmond, at 137 (cited in note 17).
[132] The facts in this paragraph are substantiated in Gitlow v. New York, 268 US 652 (1925); Gitlow is Pardoned by Governor Smith as Punished Enough, New York Times, December 12, 1925, p. 1; Gitlow, Set Free, Rejoins Radicals, New York Times, December 13, 1925, p. 18
[133] Miss Whitney Granted Pardon in California, Washington Post, June 21, 1927, p. 1 (AP story).
[134] See John Francis Neylan, 74, Dies in San Francisco, Washington Post, Aug. 22, 1960.
[135] Richmond, at 139 (cited in note 17).
[136] All of the newspaper references come from or are quoted in Miss Whitney Won’t Ask Pardon, New York Times, May 17, 1927, p. 31
[137] Has An Interest, Los Angeles Times, June 21, 1927, sec. A, p. 4.
[138] See Miss Whitney Won’t Ask Pardon, New York Times, May 17, 1927, p. 31.
[139] Quoted in Miss Whitney Granted Pardon in California, at 1 (cited in note 133).
[140] Melvin I. Urofsky and David W. Levy, “Half Brother, Half Son”: The Letters of Louis D. Brandeis to Felix Frankfurter 293 (University of Oklahoma Press, 1991) (letter dated June 26, 1927).
[141] Richmond, at 140 (cited in note 17).
[142] Rubens, at 169 (cited in note 17).
[143] See S.F. Woman Supporter of Reds Dies, Los Angeles Times, February 5, 1955, p. 2; Anita Whitney, Old-Time Communist Dies at 87, Washington Post, February 6, 1955, sec. A, p. 14. Her private papers appear to have been destroyed by an unsympathetic relative. See Rubens, at 167 (cited in note 17).
[144] 347 US 483 (1954).
[145] 274 US at 379-380 (Brandeis concurring) (emphasis added).
[146] Alpheus Thomas Mason, Brandeis: A Free Man’s Life 565 (Viking Press, 1946).
[147] The references to James Landis’ memorandum, the synthesis of the arguments therein, and the supporting quotations are drawn from James M. Landis, In re #10 – Existence of a Federal Question in the Record (undated memorandum to Justice Brandeis regarding jurisdictional hurdles in Whitney v. California), in The Louis Brandeis Papers: Part I, 1916-1931 (Harvard Legal Manuscripts, Harvard Law School Library), microfilm reel 34, frames 00325-00337.
[148] Notably, Landis took pains to distance Whitney from another case argued by Walter Nelles and Walter Pollack, Gitlow v. New York, 268 US 652 (1925), in which a certificate from the New York Court of Appeals had been used to establish the existence of a federal question for Supreme Court jurisdiction. The Gitlow case was readily distinguished on the grounds that the federal First and Fourteenth Amendment claim had been raised specifically raised in and ruled upon by the New York trial and appellate courts. See Kurland and Casper, at 521-531 (cited in note 72).
[149] Prudential Insurance Company of America v. Cheek, 259 US 530, 543 (1922).
[150] 268 US 652, 666 (1925).
[151] 283 US 359, 368-369 (1931) (striking down on First and Fourteenth Amendment grounds a California statute criminalizing the display of a red flag as a statement of “opposition to organized government”). In Fiske v. Kansas, 274 US 380 (1927) (a unanimous decision filed on the same day as Whitney), the Court set aside a Kansas syndicalism conviction of an IWW organizer because the state’s indictment and prosecution failed to introduce any real evidence of the group’s unlawful purposes. As applied, the law was “an arbitrary and unreasonable exercise of the police power of the state, unwarrantably infringing the liberty of the defendant.” Id. at 387. Fiske has been understood by some distinguished First Amendment scholars to be the first case to uphold a defendant’s claim to protection of the First Amendment. See, e.g., Emerson, at 103 (cited in note 11). See also Zechariah Chafee, Jr., Free Speech in the United States 352 (Harvard University Press, 1941). Professor Chafee does observe, however, that “[i]t might be assumed that the court did nothing more than declare that a man cannot be convicted for a crime which is neither charged nor proved.” Indeed, this narrower construction of Fiske strikes us as the more accurate one.
[152] DeJonge v. Oregon, 299 US 353 (1937).
[153] The fact that Ruthenberg’s trial and appellate attorneys explicitly raised federal constitutional speech and assembly claims and requested trial court instructions on those issues, which were predictably refused, in no way undercuts our point. After all, Ruthenberg and his counsel had faced scores of criminal indictments, and were extremely familiar with all the procedural and substantive gambits that might conceivably be used in his defense. In that respect, their particularized expertise far exceeded that of Whitney’s state trial and appellate counsel.
[154] Strictly speaking, Brandeis appears misleading when he suggested that Anita Whitney should have raised a First Amendment clear and present danger defense; for that constitutional reference masked an analogous statutory burden that Whitney’s counsel did not satisfy. Brandeis’ concurrence presented the California legislature’s explanation of the contemporary conditions threatening public order and justifying the enactment of an emergency measure. He read the California statute as creating a presumption of public harm arising from syndicalist activities – a presumption that could be rebutted by the defendant with sufficient evidence that no such imminent danger existed. Essentially, the statutory burden and the constitutional one mirrored each other; in all likelihood, a defendant who rebutted the statutory presumption would have made an argument quite similar to a First Amendment clear and present danger defense. But the two are different in this important respect: if Anita Whitney had prevailed on statutory grounds, a court would not thereafter entertain any constitutional challenge to the same effect. See, e.g., Siler v. Louisville & Nashville R Co, 213 US 175 (1909). By the same logic, if Whitney failed to raise a state statutory defense, she could not thereafter assert a federal First Amendment claim. This is but another reason why Brandeis ought to have restrained himself from waxing long on the First Amendment.
[155] “Sanford did not explain why the justices bent their rules in this case; most likely, the conservative majority wanted to warn political radicals that not only could publishing calls for revolution be punished – as Gitlow had ruled – but that simply joining a ‘revolutionary’ group could lead to prison.” Peter Irons, A People’s History of the Supreme Court 290 (Penguin Books, 1999).
[156] See Rabban, at 17-18, 118-119, 132-134, 193-200, 256-258, 282-285, 291-292, 320-326 (cited in note 9)
[157] Remember that, under the California statute, her criminal culpability was completed by her membership in the CLPC, her presence at its organizing convention and involvement in its committees, her grudging acceptance of the CLPC’s rejection of her reformist “political action” resolution, her continued active attendance at the organizing convention, and of course her willingness to entertain silly radical songs.
[158] Memorandum on Whitney v. California, October 27, 1926, pp. 5-6, in The Louis Brandeis Papers: Part I, 1916-1931 (Harvard Legal Manuscripts, Harvard Law School Library), microfilm reel 34, frames 00307-00312. This memorandum was unsigned. Based on our understanding of the record of correspondence between Brandeis and his clerks at the time, we assume that James Landis authored it; if it were not Landis, then it would have been Robert Page.
[159] Melvin I. Urofsky, The Brandeis Agenda, in Nelson L. Dawson, ed., Brandeis and America 132, 147 (University Press of Kentucky, 1989).
[160] Louis D. Brandeis, The Living Law, 10 Illinois L Rev 461, 467 (1916).
[161] Professor Urofsky makes a telling point:
. . . I keep coming back to the man, to his life and work. On several occasions I thought I had finished, and each time I would run across something new, a letter or an opinion or a source I had not seen before, and suddenly there would be a new idea, a new appreciation of what he stood for. I am not done exploring Brandeis, but it is a vast territory, and those of us working it there welcome company.
Urofsky, at 148-149 (cited in note 159).
[162] See e.g. Blasi (cite in note 4); Robert M. Cover, The Left, The Right, and The First Amendment, 40 Maryland L Rev 349 (1981).