Global Freedom of Expression

Whitney v. California

Closed Mixed Outcome

Key Details

  • Mode of Expression
    Public Assembly
  • Date of Decision
    May 16, 1927
  • Outcome
    Law or Action Upheld, Imprisonment
  • Case Number
    274 U.S. 357, 372
  • Region & Country
    United States, North America
  • Judicial Body
    Supreme (court of final appeal)
  • Type of Law
    Criminal Law, Constitutional Law
  • Themes
    Freedom of Association and Assembly / Protests, Political Expression

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Case Analysis

Case Summary and Outcome

The Supreme Court found that the California Criminal Syndicalism Act did not violate the rights to free speech, due process, or equal protection and upheld a woman’s conviction for her membership in a communist political party. Charlotte Whitney had been charged in California for her involvement in the Communist Labor Party of California, which violated a provision in the Act that prohibited someone from knowingly joining an organization that advocated “criminal syndicalism.” The Court found that the Act sufficiently informed individuals what conduct it considered unlawful, applied to everyone equally, and that the right to free speech is not absolute. The concurring opinion authored by Justice Louis Brandeis has had a lasting impact on American free speech jurisprudence.


Whitney was a member of the local Communist Labor Party of California, and an organizer for the Communist Labor Party of America. Whitney was charged under the Act for participating in and assisting the Communist Labor Party, which advocated violent revolution.

The Act defined criminal syndicalism as “any doctrine or precept advocating, teaching or aiding and abetting the commission of crime, sabotage (which word is hereby defined as meaning willful and malicious physical damage or injury to physical property), or unlawful acts of force and violence or unlawful methods of terrorism as a means of accomplishing a change in industrial ownership or control, or effecting any political change.” A person in violation of the act could be sentenced to prison. Whitney was tried, convicted, and sentenced to imprisonment.

Decision Overview

Sanford, J., delivered the opinion of the Court. The Court addressed the issue of whether the act violated the Fourteenth Amendment rights to due process and equal protection. The Court held that the act was not unconstitutional because the definition of “criminal syndicalism” was clear and specific. Thus the statute sufficiently informed individuals what conduct was illegal under the act.  The Court also found the act was not unconstitutional under equal protection grounds because it treated all persons who violated the act equally. Finally, the act did not violate the freedom of speech because the right to free speech is not an absolute right.

Brandeis, J., wrote a concurring opinion. Free speech rights are fundamental, but they are not absolute. Because of this, it is constitutional to place restrictions on an individual’s right to exercise his or her freedom of speech, particularly to protect against serious political, economic, or moral injury. However, this restriction may only be invoked when there is a “clear and imminent danger” of a “substantive evil” involved. Brandeis recognized that the Court had yet to establish a standard to determine when a danger is “clear and imminent,” or a when an evil is substantive. He also recognized that “[t]he 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.”

Brandeis also opined that the solution to unpopular speech is more speech, not “enforced silence.” As such, he suggested  that the “evil” had to be sufficiently serious before a restriction be placed on the speech. “Fear of serious injury cannot alone justify suppression of free speech and assembly.”

Decision Direction

Quick Info

Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.

Mixed Outcome

Brandeis’ language is powerful, and although he wrote a opinion concurring in the affirmation of Whitney’s conviction, his position lent more to that of a dissent. His concurrence makes Whitney v. California one of the most important free speech cases in U.S. history.

Global Perspective

Quick Info

Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.

Table of Authorities

National standards, law or jurisprudence

  • U.S., Meyer v. Nebraska, 262 U.S. 390 (1923)
  • U.S., Schenck v. United States, 249 U.S. 47 (1919)

    249 U.S. 47, 52.

  • U.S., Gitlow v. New York, 268 U.S. 652 (1925)

    268 U.S. 652, 668-671.

Case Significance

Official Case Documents

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