Sidebar - Charlotte Anita Whitney

Our travels down incorporation lane led us to Charlotte Anita Whitney - better known as the accused in Whitney v. California, 274 U.S. 357 (1927). That is the case in which Justice Brandeis explained - amongst other beautifully phrased ideas as timely today as they were 100 years ago - that the Founders of our nation understood, "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 of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies, and that the fitting remedy for evil counsels is good ones."Id. at 375. It is the case with the gold medal concurrence telling us not to silence each other but instead to continue to speak. It's the best concurrence in the history of the Court and if you have not read it, do - and if you have read it, read it again. It never gets old.

But today, it is not the opinion, but the woman whose case brought her to the high court in Washington that we're exploring. Let's start with the end - her obituary in the New York Times which is perfect if you just want the highlights. Briefly, born in 1867, a year before the ratification of the Fourteenth Amendment, she was descended from travelers on the Mayflower, the niece of a Supreme Court Justice, and yet unabashedly adherent to socialist principles despite her pedigree and wealth. Ms. Whitney was a true original.

She graduated from Wellesley, got a job teaching, and became interested in social work. That led to her commitment to women's suffrage and activism for voting rights. This brought her in contact with social reformers and labor union activists - with whom she agreed. She joined the Socialist Party and actively opposed World War I. During that time period, she favored the far left wing of the Socialist Party and spoke out in favor of the Communist Party. That is what got her arrested in 1919 under the California Criminal Syndicalism law.

Her trial took place at the height of the influenza pandemic. Indeed, one of the jurors and her own attorney died of influenza as the trial progressed. She was convicted of one of the five charges she faced and was found not guilty on the other four. Despite no prior record, for the single charge, she was sentenced to from one to fourteen years in San Quentin prison. However, due to ill health, she was released after only eleven days. Her appeal dragged on and on for eight years. (See: this article and this article for reference).

During that time, as a convicted felon with her case pending at the Supreme Court, she ran for office. In the year the Republicans overwhelmingly carried the state up and down the ticket (and Socialist Robert LaFollette got 33% of the presidential vote - far more than the Democratic and Prohibition candidates combined), Ms. Whitney lost her race for State Controller to Republican incumbent Ray Riley.

All will recall that her argument which eventually landed in the Supreme Court of the United States was that the California anti-syndicalism law violated her privileges and immunities of the First Amendment through (or as incorporated by) the Fourteenth Amendment. That is - the law under which she was convicted impermissibily punished free speech. The Court ruled against her which could have remanded her to serve out the remainder of her prison term, but Governor C.C. Young pardoned her in 1927. She would again be convicted in 1935 for speech-related crimes but appears not to have been sentenced to carceral time. Indeed, that notoriety raised her standing among more radical voters.

Ms. Whitney would continue as an activist throughout her life. She ran for the United States Senate in her 80's as the Communist candidate in 1950 - it was an interesting year where the Democratic candidate was also a woman. That year, California elected the Republican candidate and sent Richard M. Nixon to Washington.

Charlotte Anita Whitney died in 1955, fourteen years before the Supreme Court reversed itself in regard to her case in the matter of Brandenburg v. Ohio, 395 U.S. 444 (1969) which ruled that statutes punishing speech violate the First Amendment as incorporated by the Fourteenth Amendment. In the end, the outspoken and uncowed Ms. Whitney was right all along. As a wise man once said, in many ways equality and freedom of speech are a good thing.