WHITNEY v. CALIFORNIA 274 U.S. 357 (1927)

schenck v. united states (1919), abrams v. united states (1919), gitlow v. new york (1925), and Whitney are the four leading freedom of speech cases of the 1920s in which the clear and present danger rule was announced but then rejected by the majority in favor of the bad tendency test announced in Gitlow. In Whitney, Justice edward sanford repeated his Gitlow argument that a state law does not violate first amendment rights by employing the "bad tendency" test as the standard of reasonableness in speech cases. The state may reasonably proscribe "utterances … tending to … endanger the foundations of organized government." Here Justice Sanford added that "united and joint action involves even greater danger to the public peace and security than the isolated utterances … of individuals." Miss Whitney had been convicted of organizing and becoming a member of an organization that advocated and taught criminal syndicalism in violation of the California Criminal Syndicalism Act of 1919. The Court upheld the act's constitutionality.

After Schenck, the clear and present danger position had been reiterated in dissenting opinions by oliver wendell holmes and louis d. brandeis in Abrams and Gitlow. Brandeis, joined by Holmes, concurred in Whitney. Brandeis's reason for concurring rather than dissenting was that Whitney had not properly argued to the California courts that their failure to invoke the danger test was error, and that the Supreme Court might not correct errors by state courts unless those errors were properly raised below.

Brandeis's concurrence was a forceful reiteration of the value to a democracy of freedom of speech for even the most dissident speakers. The framers knew that "fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances … and that the fitting remedy for evil counsels is good ones." Brandeis reemphasized the imminence requirement of the danger rule. "To courageous, self-reliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular government, no danger flowing from speech can be deemed clear and present, unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time … to avert the evil by the process of education, the remedy to be applied is more speech, not enforced silence."

Whitney is often cited for an addition by Brandeis to the original clear and present danger formula. The evil anticipated must be not only substantive but also 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 the probability of serious injury to the state.…"

The Court overruled Whitney in brandenburg v. ohio (1969).

Martin Shapiro
(1986)