Prohibition of free speech and assembly is a measure so stringent that it would be inappropriate as the means for averting a relatively trivial harm to society. Our power of review in this case is limited not only to the question whether a right guaranteed by the federal Constitution was denied (Murdock v. City of Memphis, 20 Wall.
People v. Whitney, 57 Cal.

it must remain open to a defendant to present the issue whether there actually did exist at the time a clear danger; whether the danger, if any, was imminent, and whether the evil apprehended was one so substantial as to justify the stringent restriction interposed by the legislature. Compare Thomas Jefferson: 'We have nothing to fear from the demoralizing reasonings of some, if others are left free to demonstrate their errors and especially when the law stands ready to punish the first criminal act produced by the false reasonings; these are safer corrections than the conscience of the judge.' 982; Miedreich v. Lauenstein, 232 U. S. 236, 242, 34 S. Ct. 309, 58 L. Ed.

Although the majority Supreme Court decision in Whitney v. California (1927) upheld the conviction of an individual from the Communist Labor Party under California criminal syndicalism laws, Justice Louis D. Brandeis’s concurring opinion in defense of free speech in the case has become a milestone in First Amendment jurisprudence.

A statute does not violate the equal protection clause merely because it is not all-embracing; Zucht v. King, 260 U. S. 174, 260 U. S. 177; James-Dickinson Farm Mortgage Co. v. Harry, 273 U. S. 119. Those who won our independence believed that the final end of the State was to make men free to develop their faculties, and that, in its government, the deliberative forces should prevail over the arbitrary. While Whitney v. California upheld a criminal syndicalism law that punished Whitney for her association and work with the party, the decision was famous for the concurring opinion written by Justice Louis D. Brandeis. This statute presents no greater uncertainty or difficulty, in application to necessarily varying facts, than has been repeatedly sanctioned by this court.

Charlotte Anita Whitney, a founding member of the Communist Labor Party of California, was prosecuted under California’s Criminal Syndicalism Act for helping to organize a group that sought to effect economic and political change through the unlawful use of violence. This Court acquires no jurisdiction to review the judgment of a state court of last resort on a writ of error unless it affirmatively appears on the face of the record that a federal question constituting an appropriate ground for such review was presented in and expressly or necessarily decided by such state court. A certified copy of that order, brought here as an addition to the record, shows that it was made and entered pursuant to a stipulation of the parties, approved by the court, and that it contains the following statement: "The question whether the California Criminal Syndicalism Act . And the case was brought here on a writ of error which was allowed by the Presiding Justice of the Court of Appeal, the highest court of the State in which a decision could be had. On the other hand, there was evidence on which the court or jury might have found that such danger existed.

1. Fear of serious injury cannot alone justify suppression of free speech and assembly.

In order to support a finding of clear and present danger it must be shown either that immediate serious violence was to be expected or was advocated, or that the past conduct furnished reason to believe that such advocacy was then contemplated.

Although the majority Supreme Court decision in Whitney v. California, 274 U.S. 357 (1927), upholding the conviction of an individual from the Communist Labor Party has been overturned, Justice Louis D. Brandeis’s concurring opinion in defense of free speech has become a milestone in First Amendment jurisprudence. Ct.App, 1922); review denied, Supreme Court of California, 6-24-22; dismissed for want of jurisdiction, 269 U.S. 530 (1925); rehearing granted, 269 U.S. 538 (1925). The article described the meeting as being filled with “Germans and near-Germans” and the program that was adopted as advocating “destruction of private property rights by force.” The mental picture conjured up by the description was bad enough for some of the people of Oakland, reading the article only a... Thomas O’Connor’s death was foremost in the minds of all the participants when court reconvened on the morning of Monday, February 9. If the government can punish unpopular views, it cramps freedom, and in the long run, that will strangle democratic processes. Whenever the fundamental rights of free speech and assembly are alleged to have been invaded, it must remain open to a defendant to present the issue whether there actually did exist at the time a clear danger, whether the danger, if any, was imminent, and whether the evil apprehended was one so substantial as to justify the stringent restriction interposed by the Legislature.

of California proclaims and insists that the capture of political power, locally or nationally by the revolutionary working class, can be of tremendous assistance to the workers in their struggle of emancipation. P. 274 U. S. 369. This opinion is an example of Brandeis at his most eloquent. JSTOR is part of ITHAKA, a not-for-profit organization helping the academic community use digital technologies to preserve the scholarly record and to advance research and teaching in sustainable ways.

Gitlow v. New York, 268 U. S. 652, 666, 668, 45 S. Ct. 625, 69 L. Ed.
Whitney was arrested and convicted of violating the California Criminal Syndicalism Act of 1919 for her role in helping to establish the CLP. The determination of the legislature that the acts defined involve such danger to the public peace and security of the State that they should be penalized in the exercise of the police power must be given great weight, and every presumption be indulged in favor of the validity of the statute, which could be declared unconstitutional only if an attempt to exercise arbitrarily and unreasonably the authority vested in the State in the public interest.

[Footnote 4] Such, in my opinion, is the command of the Constitution. And similar Criminal Syndicalism statutes of other States, some less specific in their definitions, have been held by the State courts not to be void for indefiniteness.