Whitney v. California – Case Brief Summary

Summary of Whitney v. California, 274 U.S. 357, 47 S. Ct. 641, 71 L. Ed. 1095 (1927).


Under the Criminal Syndicalism Act of California, any person who organized or became a member of any organization that assembled to advocate or teach criminal syndicalism was guilty of a felony. The term “criminal syndicalism” was defined as any doctrine advocating, teaching, or aiding or abetting the use of crime or violence to accomplish change in industrial ownership of government control.

Anita Whitney (D), a member of a prominent California family, helped organize a California branch of the Communist Labor Party. She held positions on a number of committees and took an active part in the party’s convention which she attended as a delegate.

The state of California charged that the Communist Party of California was devoted to advocating the violent overthrow of the government, and Whitney was convicted under the Criminal Syndicalism Act for her role in the organization. On appeal Whitney asserted that she had not intended the party to become an instrument of violence and that her mere presence at the convention was not a crime. Whitney asserted that the Act was unconstitutional for violating her rights to due process, and freedom of speech, assembly, and association. Whitney’s conviction was affirmed on appeal, the Supreme Court of California denied a petition for appeal, and the Supreme Court of the United States granted certiorari.


  1. To what extent may the states impose restrictions on free speech in the exercise of their police power?
  2. Is a law that penalizes those who advocate violence as a means of changing industrial and political conditions, but does not penalize the use of violence to maintain such conditions, a violation of the Equal Protection Clause of the Fourteenth Amendment?

Holding and Rule (Sanford)

  1. In determining whether a state law restricting free speech is a valid exercise of the police power, the law may not be declared unconstitutional unless it is an arbitrary or unreasonable attempt to exercise the authority vested in the State in the public interest. Every presumption is to be indulged in favor of the validity of the statute.
  2. No. A law that penalizes those who advocate violence as a means of changing industrial and political conditions, but does not penalize the use of violence to maintain such conditions, is not an unconstitutional violation of the Equal Protection Clause of the Fourteenth Amendment.

The freedom of speech granted by the Constitution is not an absolute right to speak, without responsibility, whatever one may choose, or an unrestricted and unbridled license giving immunity for every possible use of language and preventing the punishment of those who abuse this freedom. A State in the exercise of its police power may punish speech harmful to the general welfare, tending to incite to crime, disturb the public peace, or endanger the foundations of organized government and threaten its overthrow by unlawful means.

By enacting the provisions of the Syndicalism Act, the California state legislature has declared that to knowingly become a member of or assist in organizing an association to advocate, teach or aid and abet the commission of crimes or unlawful acts of force, violence or terrorism to accomplish industrial or political change involves such danger to the public peace and the security of the State, that these acts should be penalized in the exercise of its police power. That determination must be given great weight.

A statute does not violate the Equal Protection Clause merely because it is not all-embracing. A State may properly direct its legislation against what it deems an existing evil without covering the whole field of possible abuses. It is not open to objection unless the classification is so lacking in any adequate or reasonable basis as to preclude the assumption that it was made in the exercise of the legislative judgment and discretion.

The Syndicalism Act is not class legislation. It affects all alike, no matter what their business associations or callings, who come within its terms and do the things prohibited. And there is no substantial basis for the contention that the legislature has arbitrarily or unreasonably limited its application to those advocating the use of violent and unlawful methods to effect changes in industrial and political conditions, there being nothing indicating any ground to apprehend that those desiring to maintain existing industrial and political conditions did or would advocate such methods.


Conviction of Whitney affirmed.

Concurring (Brandeis)

All fundamental civil rights comprised within the term liberty are protected by the Constitution from invasion by the States. The right of free speech, the right to teach, and the right of assembly are, of course, fundamental rights. These may not be denied or abridged, but they are not absolute.

Their exercise is subject to restriction if the proposed restriction is required in order to protect the State from destruction or from serious injury, political, economic, or moral. The necessity which is essential to a valid restriction does not exist unless speech would produce, or is intended to produce, a clear and imminent danger of some substantive evil which the State constitutionally may seek to prevent.

The state legislature has the power to determine whether, at a particular time and under the particular circumstances, the formation of, or assembly with, a society organized to advocate criminal syndicalism constitutes a clear and present danger of substantive evil. By enacting the law here in question, the legislature of California determined that question in the affirmative.

See Baker v. Carr for a constitutional law case brief featuring issues involving the Equal Protection Clause, legislative apportionment, and the political question doctrine.

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