Whitney v. California

Whitney v. California, 274 U.S. 357 (1927), argued 18 Mar. 1926, decided 26 May 1927 by vote of 9 to 0; Sanford for the Court, Brandeis and Holmes concurring. In 1919 California passed a criminal syndicalism law designed to restrict the activities of the Industrial Workers of the World (IWW), a union long active in the state's agricultural fields and lumber camps. The statute prohibited advocacy of changes in the system of industrial ownership or political control.

The first significant prosecution under the law involved Charlotte Anita Whitney, social activist and prominent member of the Socialist party. In late 1919, authorities arrested her for participating in a November convention of the Communist Labor party (CLP), an organization from which she had recently resigned. At Whitney's trial, the prosecution introduced considerable IWW literature in an attempt to tie the organization to the CLP, which had generally endorsed IWW objectives. Whitney did not deny her short‐lived CLP membership, and the jury convicted her solely on that count—a classic example of guilt by association.

Subsequently, the U.S. Supreme Court unanimously upheld the California statute on the basis of the state's power to protect the public from violent political action. However, in his concurrence, Justice Louis Brandeis, joined by Justice Oliver Wendell Holmes, contended that Whitney's attorneys should have argued for a clear and present danger test to distinguish between membership and dangerous action. They reasoned that the liberty protection of the Fourteenth Amendment Due Process Clause joined with the First Amendment to protect freedom of assembly from state regulation (see Incorporation Doctrine).

The Brandeis concurrence became an important step in the Court's eventual acceptance of the clear and present danger test. In Brandenburg v. Ohio (1969), the Supreme Court overturned Whitney, but a modified version of the law remains in force.

See also Assembly and Association, Citizenship, Freedom of; Due Process, Substantive; Speech and the Press.

Carol E. Jenson