Liberty Defined - Part 2

After Gitlow came the onslaught. Okay, not an onslaught, but state Criminal Syndicalism Acts were all the rage 100 years ago. Because the word is no longer in common usage, it makes sense to define it. According to Merriam-Webster, syndicalism falls under one of these definitions:

1 : a revolutionary doctrine by which workers seize control of the economy and the government by direct means (such as a general strike)

2: a system of economic organization in which industries are owned and managed by the workers

3: a theory of government based on functional rather than territorial representation

A century ago, socialism and communism were having a moment. To understand why - let's set the stage. People in the nineteen-teens were witnesses to what seemed to be cataclysmic change- the Mexican Revolution, the Russian Revolution, and World War I, unspeakable death from influenza, and changing social norms including Prohibition and Women's Suffrage. Following the Great War, a transitional economy with over 11% unemployment nationally, would lead first to the "Roaring Twenties" and then to Depression, but along the way it would radically change America's economic place in the world. That was just beginning. Further, this was a time of new technology including cars and radios and washing machines – a time of wildly available credit allowing people to buy what they wanted now and to pay later – an enormous urban-rural divide, and extreme income inequality. The more things change, the more they stay the same.

Fear predominated.

After a Democratic president finished his term quite frail and incapable of governing on his own, a populist Republican was elected. He promised a return to normalcy; he appointed well known rich people into cabinet positions. Normalcy was nowhere in sight. That president died in office before exposure of his scandals and extramarital affairs and the extreme corruption of those he appointed to serve the American people came to light and tarnished his name forever. But, I digress.

Among the many fears gripping the nation, the post-war fear of economic revolution seemed real enough to those in power to craft state laws punishing the overthrow of capitalism. They were called criminal syndicalism laws. This is how our friend, Mr. Gitlow, got corralled into the criminal justice system. Recall that Gitlow v. New York, 268 U.S. 652 (1925) is the case in which the Court offhandedly affirmed that the Fourteenth Amendment applied to states seeking to curtail free speech and assembly. While the Court was on the fence about whether states could be restrained as to issues related to the First Amendment through the terms of the Fourteenth Amendment prior to that decision, the case was decided based on that very incorporation idea. Would it stick?

Fast forward to May 16, 1927, when 2 cases – one from Kansas and one from California were decided by the Supreme Court of the United States on the very same day regarding arguments related to those states’ criminal syndicalism laws and whether they interfered with rights guaranteed by the First Amendment.

We’ll start with Fiske v. Kansas, 274 U.S. 380 (1927). 

A 26 year old labor organizer and member of the Industrial Workers of the World named Harold B. Fiske (not “the” Harold B. Fiske – a different one) was arrested while recruiting people to join the movement. He was charged with criminal syndicalism because the literature he carried and distributed had some language that advocated for radical changes including a struggle for the working class to, amongst other things, “take possession of the earth and the machinery of production and abolish the wage system” and form, “the structure of the new society within the shell of the old.”

The Industrial Workers of the World were known to support strikes, boycotts, and other means – some that became violent – in order to achieve their goals. The accusation faced by Mr. Fiske was that the organization itself advocated crimes and violence.  Indeed, it averred that Fiske’s membership in and advocacy for such union amounted to advocacy for the violent overturn of government. This syllogism was the crux of the state's case, even though Mr. Fiske was not a violent person and had never advocated for violence.

The jury was instructed that they must be convinced that the Industrial Workers of the World was an organization that taught criminal syndicalism as defined by the Kansas criminal syndication law in order to convict Fiske. Apparently, they were so convinced and they did convict him. Amongst his many appellate issues was the one raising a federal question: he argued that the Kansas law – at least as applied – violated the due process clause of the Fourteenth Amendment. The Kansas Supreme Court upheld the conviction.

The Supreme Court of the United States took the case. It ruled unanimously that the law, as applied, was, “an arbitrary and unreasonable exercise of the police power of the State, unwarrantably infringing the liberty of the defendant in violation of the due process clause of the Fourteenth Amendment.” Mr. Fiske’s conviction was reversed. Free speech wins! Hooray!

But wait...

There was another case. On the very same day, in an opinion written by the very same Justice, the Court reached a different conclusion in the matter of Whitney v. California, 274 U.S. 357 (1927). In short, this case rendered one of the most spectacular concurrences in this history of the Court written by Justice Brandeis and joined by Justice Holmes. 

SIDEBAR: Both of these thoughtful Justices were from the great Commonwealth of Massachusetts. There must be something in the water.

The concurrence itself does not condone the California law – indeed, it remarks that the crime as defined by the state does not allege a conspiracy or the actual practice of syndicalism, but instead it criminalized merely “association with those who preach it.” The concurrence went on to explain that really there had to be a clear and present danger of serious violence to be a crime and that the statute was deeply troubling. However, there was sufficient evidence at trial to suggest a conspiracy to commit serious crimes and it did demonstrate Ms. Whitney’s involvement in this organization. For that reason, her conviction should be upheld.

Although the case (since overturned) is well remembered for the brilliant articulation of freedom of speech in the concurrence, it was not viewed by the Court as a First Amendment case. Indeed, Ms. Whitney was largely silent in her support of the Communist Party. Instead, in Whitney, the Court found that the California law in question was valid on its face and as applied to support the conviction of Ms. Whitney for reasons so eerily close to those of poor Mr. Marbury in the earliest days of the Republic. He filed in the wrong court - she failed to raise the issue sufficiently for the Court to correct a "vital error" in the criminal case since it was not taken first in the trial court. See, Whitney v. California, 274 U.S. at 380.

The trial of Charlotte Anita Whitney, the lengthy appellate process of her conviction prior to its arrival in the Supreme Court of the United States, and the aftermath is far too much for this post. But, stay tuned. It is fantastic! And, she will be getting a spotlight in short order.

But, back to our adventures in liberty as understood through the lens of the Fourteenth Amendment – in these two cases, decided very differently, we have affirmance of one true thing: the Court incorporated the First Amendment to the states by means of the Fourteenth Amendment. Gitney was not a one-off. It was the first drop in what will become a watershed of Fourteenth Amendment litigation. And, away we go to see what comes next.