Brandeis and the First Amendment

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Justice louis d. brandeis served on the Supreme Court from 1916 until 1939 following a legendary career as a practicing attorney. During that lengthy tenure he had several occasions to consider the meaning of the First Amendment guarantee of freedom of speech, including a number of cases involving critics of the nation's entry into world war i. It is, however, a single concurring opinion he wrote in 1927 that accounts for Brandeis's reputation as arguably our greatest First Amendment judge.

whitney v. california (1927) grew out of the prosecution of a middle-aged woman for being a member of an organization that advocated changes in government and industrial ownership by means of force or violence. Anita Whitney did not herself advocate or favor the use of force for these purposes, but she attended a convention of a party that voted down her proposed resolution endorsing peaceful methods of change and thereafter remained an active member of the organization. She was prosecuted, convicted, and sent to prison for her association with the group.

She appealed her conviction to the Supreme Court, claiming that the First Amendment protects the political association in which she had engaged. A majority of the Court rejected her contention and affirmed the conviction. Brandeis, joined by Justice oliver wendell holmes, jr. , concurred separately. He found a procedural barrier to considering her First Amendment defense and thus he voted to affirm her conviction. Brandeis nevertheless objected strenuously to the majority's rejection of Whitney's claim on the merits. He reiterated the view, previously expressed by Holmes in opinions Brandeis had joined, that under the First Amendment speech can be regulated only when it creates a clear and present danger of harm. On this occasion, Brandeis even tightened that test, concluding that the only harms that can justify regulation must amount to a "serious injury to the state." It is not, however, his refinement of the clear-and-present danger test that accounts for the extraordinary stature of the Whitney opinion. It is Brandeis's exploration of the philosophical foundations of the commitment to free speech that makes the opinion such an important document, and Brandeis such a pivotal figure in the First Amendment tradition.

Brandeis begins his treatment of the subject by ascribing two key tenets to "[t]hose who won our independence." First, they "believed that the final end of the state was to make men free to develop their faculties." Second, they believed that in the conduct of government "the deliberative forces should prevail over the arbitrary." Brandeis perceived an important connection between these two ideas. He says the founders of the American republic "valued liberty both as an end and as a means." To Brandeis, liberty entails much more than being left alone to make self-regarding hedonistic choices or to form arbitrary or self-serving beliefs. Although the American revolutionaries "believed liberty to be the secret of happiness," they also believed "courage to be the secret of liberty." Here Brandeis echoes the great funeral oration of Pericles in Thucydides's History of the Peloponnesian War, one of Brandeis's favorite books. Courage is a demanding virtue. Persons who develop their faculties of self-discipline, independence, and strength of character, according to Pericles and Brandeis, not only achieve a meaningful and enduring type of personal happiness but also make the best citizens and contribute the most to the polity. In this way, Brandeis links individual liberty with collective self-government.

That linkage lies at the heart of his high regard for the freedom of speech. He considered the decision to repress unorthodox, threatening speech to be a self-defeating capitulation to fear. "Fear of serious injury cannot alone justify suppression of free speech and assembly," he states. "Men feared witches and burnt women. It is the function of speech to free men from the bondage of irrational fears." Brandeis worried greatly about the adverse effect on the character of a political community that follows from getting caught up in the cycle of distrust and resentment that the regulation of speech both manifests and fuels. "[F]ear breeds repression," he says, and "repression breeds hate." Such "hate menaces stable government." The more productive response to threatening ideas, Brandeis believed, is to display a form of civic courage: "the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies … the fitting remedy for evil counsels is good ones."

There can be little doubt that Brandeis's faith in the power of "more speech" was informed by his general attitude toward change. "Those who won our independence by revolution were not cowards," he says. "They did not fear political change. They did not exalt order at the cost of liberty." To him, the choice between repression and toleration represents a fundamental test of character. To fail to trust the power of more speech is to "discourage thought, hope, and imagination." The consequences of such a course, Brandeis believed, are deadly: "the greatest menace to freedom is an inert people."

Vincent Blasi

(see also: Brandeis as Public Interest Lawyer.)


Blasi, Vincent 1988 The First Amendment and the Ideal of Civic Courage: The Brandeis Opinion in Whitney v. California. William and Mary Law Review 29:653–697.

Lahav, Pnina 1988 Holmes and Brandeis: Libertarian and Republican Justifications for Free Speech. Journal of Law and Politics 4:451–482.

Strum, Philippa 1993 Brandeis: Beyond Progressivism, chapter 6. Lawrence: University Press of Kansas.

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Brandeis and the First Amendment

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