Whitney v. California
274 U.S. 357 (1927)

  • Under California’s Criminal Syndicalism Act, it was a crime to advocate, teach, or aid the commission of a crime, including “terrorism as a means of accomplishing a change in industrial ownership…or effecting any political change.”
  • Whitney (a Communist!) was arrested for espousing ideas about Communism.
    • Whitney argued that she wasn’t inciting anyone to do anything illegal or to overthrow the government. She was just teaching the basic tenants of communism.
  • Whitney was convicted under the Criminal Syndicalism Act. She appealed.
    • Whitney argued that the law was an unconstitutional infringement of her right to free speech under the 1st Amendment.
  • The US Supreme Court upheld the conviction.
    • The US Supreme Court found that freedom of speech is not an absolute right, but it can be limited by reasonable government concerns.
    • In this case, the Court found that the law was not an arbitrary and unreasonable exercise of a States’ police power, and therefore it was constitutional.
      • That’s known as the reasonableness approach.
      • See Gitlow v. New York (268 U.S. 652 (1925)).
  • In a concurrence it was argued that the reasonableness approach was too broad, and that the Court should go back to the previous standard, the clear and present danger test, where speech was protected unless it presented a “clear and present danger.”
    • It was argued that even unpopular ideas are important to public discourse, and so should not be censored unless they are truly dangerous, the danger is ‘serious’, and the State can clearly define the danger.
      • Generic ‘fear’ is not enough to be a danger. There must be a reasonable ground to believe that serious, imminent evil will result if free speech is allowed.
      • ‘Advocacy’ should be protected, only ‘Incitement’ should be unprotected.
      • Suppressing speech leads to resentment, which can result in even more extreme behavior by those who are not allowed to express themselves.
    • See Schenck v. United States (249 U.S. 47 (1919)).