‘Free speech’ Impact of Whitney v. California

brandeisArguably, the most important free-speech opinion in American jurisprudence was Justice Louis Brandeis’ concurring opinion in Whitney v. California (1927).

While the Court affirmed the conviction of Charlotte Anita Whitney under a California anti-syndicalism law, Brandeis breathed life into the Free Speech Clause.

Justice Brandeis authored an opinion that established the intellectual justification for the First Amendment. For example, Brandeis eloquently wrote: “If there time to expose through discussion the falsehood and fallacies, to avert the evils by the processes of education, the remedy to be applied is more speech, not enforced silence.” This phrase “more speech, not enforced silence” embodies the principle known as the counter-speech doctrine, that the government should counter harmful speech with positive speech.

Phillippa Strum analyzes the events that led to Whitney v. California and the defendant in the case, Ms. Whitney, in her book Speaking Freely: Whitney v. California and American Speech Law.

The work is part of the University of Kansas Press series on landmark cases.

The book examines Whitney career as a committed Socialist devoted to addressing injustices in society. A women’s suffragist, she also advocated against anti-miscegenation laws, for juvenile justice, and various other social causes.

Strum expertly weaves the tenor of the times and the progression of Whitney’s cases. Readers will learn various unfortunate aspects of the litigation, including the untimely death of Whitney’s lead trial attorney, Thomas M. O’Connor, during the case.

Strum has written books on Brandeis and her knowledge of the jurist shines through in Speaking Freely.

“Justice Brandeis’ concurrence in Whitney changed the course of American speech law,” Strumm writes. Readers interested in learning more about that free speech history will find much to enjoy in this gem of a book.

David L. Hudson, Jr. is the Ombudsman for the Newseum Institute First Amendment Center. He is the author of Let The Students Speak!: A History of the Fight for Free Expression in American Schools (Beacon Press, 2011) and Teen Legal Rights.

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