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Whitney v. California

Citation. 274 U.S. 357, 47 S.Ct. 641, 71 L.Ed. 1095 (1927).
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Brief Fact Summary.

Whitney was convicted under the Act. She appealed her conviction, arguing that the Act violated the U.S. Constitution.

Synopsis of Rule of Law.

A state may constitutionally prohibit its citizens from knowingly being or becoming a member of an organization that advocates criminal syndicalism.


Whitney was convicted under the Act for allegedly helping to establish the Communist Labor Party of America, a group charged by the state with teaching the violent overthrow of the government. Whitney denied that it had been the intention of her or other organizers for the party to become an instrument of violence.


Does the Act violate the First or Fourteenth Amendments, rendering Whitney’s conviction unconstitutional?


No, the Act does not violate the First or Fourteenth Amendments of the Constitution.


Justice Brandeis

The restrictions on government action under the First and Fourteenth Amendments do not extend to situations in which speech creates a clear and present danger of an evil outcome. The actions that the defendant took posed only a remote potential harm to the public, and she was involved only in contributing to the preparation of the actions. To satisfy the clear and present danger standard, the risk of harm must be severe, probable, and imminent. Broad statements advocating for revolution at some indefinite date in the future are protected by the First Amendment.


In a unanimous decision, the Court sustained Whitney’s conviction and held that the Act did not violate the Constitution. The Court found that the Act violated neither the Due Process nor the Equal Protection Clauses, and that freedom of speech guaranteed by the Free Speech Clause of the First Amendment was not an absolute right. The Court held that the state, in exercising its police power, can punish those who abuse their rights to freedom of speech “by utterances inimical to the public welfare, tending to incite crime, disturb the public peace, or endanger the foundations of organized government and threaten its overthrow.” In other words, words with a “bad tendency” can be punished.

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