Whitney v. California

Brief Fact Summary. The California Criminal Syndicalism Act (the Act) prohibited any person to knowingly become a member of any organization that advocates “Criminal Syndicalism.” The Defendant, Anita Whitney (Defendant), was affiliated with an organization that adopted a “Left Wing Manifesto” and therefore convicted under the act.

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 consistently with the First Amendment of the United States Constitution (Constitution).

Facts. The Act prohibited any person to knowingly become a member of any organization that advocates the commission of unlawful acts as a means of accomplishing a change in industrial ownership or effecting a political change. The Defendant was a member of the Oakland branch of the Socialist Party, which later formed the Communist Labor Party (“CLP”). The CLP adopted a Left Wing Manifesto similar to that at issue in Gitlow. Shortly thereafter, the Defendant attended a conference in Oakland for the purpose of organizing a California branch of the CLA. As a result, the Appellant was charged under the Act.

Issue. Did the Defendant’s knowingly being or becoming a member of an organization that advocated “criminal syndicalism” involve sufficient danger to the public peace that the State could constitutionally penalize her for it?

Held. Yes. The lower court is affirmed.
Justice Edward Sanford (J. Sanford) Because united and joint action involves even greater danger to the public peace and security than does single utterances and acts of individuals, it is not an unreasonable or arbitrary exercise of the police power of the State to prohibit the type of activity prohibited by the Act.
Concurrence. Justice Louis Brandeis (J. Brandeis) Although the right to free speech is fundamental, it is not absolute. The right is subject to such restrictions as are required to protect the public from clear and imminent dangers. The Supreme Court of the United States (Supreme Court) has not yet fixed a standard by which to determine when such a degree of danger exists, but it has articulated the following guidelines: (1) fear of serious injury alone cannot justify suppression of free speech and assembly; (2) Even imminent danger cannot justify prohibitions on speech, unless the dangers apprehended are relatively serious.

Discussion. The Supreme Court is drawing a line here between expression rights exercised in the form of a conspiracy (i.e., rights of association) and expression rights exercised in the form of utterances. At issue in this case is the same type of statute that was at issue in Gitlow. The Supreme Court here, once again, upholds the statute but on different reasoning. J. Brandeis’ concurring opinion evinces a movement to a more stringent and contemporaneous regulation of free speech standard.