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Whitney v. California

Citation. 274 U.S. 357 (1927)
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Brief Fact Summary.

Petitioner, Whitney, was convicted of violating the California law against criminal syndicalism.

Synopsis of Rule of Law.

All fundamental rights comprised within the term liberty are protected by the Constitution from invasion by the States.


Whitney was convicted of the felony of assisting in organizing the Communist Labor Party of California, of being a member of it, and of assembling with it in 1919. These acts are held to constitute a crime, because the party was formed to teach criminal syndicalism. The statute that made these acts a crime restricted the right of free speech and of assembling. The petitioner claimed that the statute denied her the liberty guaranteed by the Fourteenth Amendment.


Does the California law that make syndicalism a crime violate the Fourteenth Amendment?


Yes, although the right of free speech and assembly are fundamental, they are not absolute in their nature. Their exercise is subject to restriction, if the particular restriction proposed is required to protect the State from destruction or from serious injury, political, economic or moral. Because the petitioner’s act poses a clear and present danger to the State and immediate serious violence was expected and advocated, the California statute that prohibits syndicalism does not violate the Fourteenth Amendment.


Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches and burnt women. It is the function of speech to free men from the bondage of irrational fears. To justify suppression of free speech there must be reasonable ground to fear that serious evil will result if free speech is practiced. There must be reasonable ground to believe that the danger apprehended is imminent and the evil to be prevented is a serious one. Moreover, even imminent danger cannot justify resort to prohibition of these functions essential to effective democracy, unless the evil apprehended is relatively serious. The fact that speech is likely to result in some violence or in destruction of property is not enough to justify its suppression. There must be a probability of serious injury to the State. Here, there was enough evidence to support a finding of clear and present danger to California because from the petitioner’s act, immediate serious violence was expected and also was advocated.

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