Whitney v. California

274 U.S. 357 (1927)

Concurring Opinion by Justice Brandeis


Although Justice Brandeis (joined by Holmes) ultimately concurred that Anita Whitney could be prosecuted for criminal syndicalism, his separate concurrence made clear where he departed from the majority: “I am unable to assent to the suggestion in the opinion of the Court that assembling with a political party, formed to advocate the desirability of a proletarian revolution by mass action at some date necessarily far in the future, is not a right within the protection of the 14th Amendment.” Instead, Brandeis rested his concurrence in judgment on the view that the record contained evidence that Whitney was part of conspiracy with the International Workers of the World “to commit present serious crimes.”


Brandeis’ first contribution to this constitutional is bold and memorable. Indeed, Brandeis makes the need for bravery in a democracy a primary theme. He writes:  


“[Those who won our independence] recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path to safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones…


Fear of serious injury cannot alone justify suppression of free speech and assembly. Men fear witches and burned women. It is the function of free speech to free men from bondage of irrational fears…


Those who won our independence by revolution were not cowards. They did not fear political change. They did not exalt order at the cost of liberty. To courageous, self-reliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular government, no danger flowing from speech can be deemed clear and present, unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion.”


The last line quoted demonstrates the insistence on real imminence that characterizes the opinions in this line.


CourtListener (full opinion text)

Oyez (summary)

Wikipedia (summary + links)

Brandeis Concurrence and Idea of Civic Courage by Prof. Vince Blasi