Free speech and democracy


 This is a Brief of Whitney v. California, a 1925 case about the Free Speech of a Communist, Charlotte Whitney.  In later cases before the Supreme Court, the right of free speech would be strengthened more than the “imminent lawless action” test used on Charlotte Whitney Here, the mere idea that Charlotte Whitney’s speech advocated a clear and present danger, and that under the state Syndicates law by which she was convicted, her speech had a bad tendency to create an imminent lawless action, was found to be quite enough to uphold her conviction.  Free speech was valuable but Syndicacy was upheld, even though it outlawed mere advocacy of violence.  Nothing clear or present was required of the danger complained of in the law.

The Court would later require intent, imminence, and the likelihood the speech presented a clear and present danger, to overcome a guarantee of free speech. That, in fact, is the test we use today to determine if the speech ought to be protected.  

Justice Hugo Black would explain that stronger test in the Brandenburg v. Ohio case 395 U.S. 444 (1969).  The Whitney case of the 1920s, whose “bad tendency to create an imminent lawless action” free speech test was shored up in the 1960s, is interesting for three reasons, even though it hs been overruled  since 1969:

  1. The high-minded idealism described by Brandeis explains how free speech supports democracy
  2. The story of a Communist Labor Party leader who went to prison for politics in America is tragic and should not be forgotten
  3. The seeds of judicial activism evident is an example of high minded ideals outlined that aren’t actually in the “black letters on parchment” and therefore Constitutionalists hate to see the Court use those ideals).

The issue was whether the communist, Charlotte Whitney, could be vindicated under the 14th Amendment substantive due process right of free speech, or was she criminally liable under the California Syndicalism statute?

The rule: the Fourteenth Amendment allowed the federal government to protect free speech unless the speech showed a “bad tendency to create an imminent lawless action.”

The explanation for the rule

The Court relied on what our forefathers intentions were in drafting the Constitution coupled with the values (the Founders held) themselves.  These noble ideals gave the Court their authority to uphold the value of free speech in a federal court.

Brandeis, in a concurring opinion of the Court, explained  those noble terms…..that is, why free speech was valuable to democracy:
“Those who won our independence believed that the final end of the State was to make men free to develop their faculties, and that, in its government, the deliberative forces should prevail over the arbitrary. They valued liberty both as an end, and as a means. They believed liberty to be the secret of happiness, and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that, without free speech and assembly, discussion would be futile; that, with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty, and that this should be a fundamental principle of the American government. [n2] They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; 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 proposed remedies, and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law — the argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed.” Justice Brandeis concurring opinion in Whitney v. California, 274 U.S. 357, available at


Applying the rule:

The Court explained, that in the case of the Fourteenth Amendment exception (the clear and present danger test),

“Whenever the fundamental rights of free speech and assembly are alleged to have been invaded, it must remain open to a defendant to present the issue whether there actually did exist at the time a clear danger; whether the danger, if any, was imminent, and whether the evil apprehended was one so substantial as to justify the stringent restriction interposed by the legislature.”


But, the Supreme Court distinguished between the law and the application of the law.  They found a way to be distressed about the liberty interest– the guarantee of free speech– without actually freeing the Communist in the case.



Charlotte Whitney was later pardoned because of Brandeis’s concurring opinion (so don’t call it dicta!). The law against Syndicalism was not struck down.  Democracy continued to slump along.  The right to free speech is the thing that got stronger than Charlotte Whitney saw the blessing in….:  for, now, to foreclose an Americans right to free speech, that speech most be proven to be intended to present a clear and present danger that is imminent and likely to occur.


Post script

The devil’s in the details…

Whitney’s communism was maybe why it took the Court so long to get serious about the test they used to judge when to set down the First Amendment right, and when to keep it as a free pass.  The Brandenberg Test that overruled Whitney v California in the 1960s, (which finally required intent, imminence, and likelihood to present a clear and present danger) offered so much more protection to people who want to speak their mind and their political speech is perhaps frightening and distasteful for most.

Brandenberg v. Ohio was written in the context of a member of the KKK, Clarence Brandenberg, who had been convicted for Syndicalism, the same crime Charlotte Whitney went to prison for. Brandenburg v. Ohio 395 U.S. 444 (1969), but this time, in the context of speech opposing Blacks and Jews.

Interestingly, and maybe it is just the kind of sin that the world gives a man a chance to atone for later, Justice Black, the civil libertarian and absolutist First Amendment Justice who wrote the Brandenberg opinion that gave such broad new protection to First Amendment speech, had briefly been a member of the KKK. (see for a list of Pulitzer Prize winners, one of whom was Ray Spriegle for his series about Hugo Black in the Ku Klux Klan. Maybe Justice Black was sympathetic and free speech was along for the ride…or maybe he saw his chance for redemption.



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first generation lawyer, second generation creative writer. squabbler and thinker; I'm better at composing my thoughts in type than by verbalizing. I'm also associated with advocacy and homelessness alleviation nonprofit work.

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