Whitney v. California,
274 U.S. 357 (1927)

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U.S. Supreme Court

Whitney v. California, 274 U.S. 357 (1927)

Whitney v. California

No. 3

Argued October 6, 1925

Reargued March 18, 1926

Decided May 16, 1927

274 U.S. 357


1. 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. P. 274 U. S. 360.

2. Where the fact that a federal question was considered and passed upon by the state court does not appear by the record, it may be shown by a certified copy of an order of that court made after the return of the writ of error and brought here as an addition to the record. P. 274 U. S. 361.

3. In reviewing the judgment of a state court, this Court will consider only such federal questions as are shown to have been presented to the state court and expressly or necessarily decided by it. P. 274 U. S. 362.

4. The question whether the petitioner, who joined and assisted in the organization of a Communist Labor Party contravening the California Criminal Syndicalism Act, did so with knowledge of its unlawful character and purpose, was a mere question of the weight of the evidence, foreclosed by the verdict of guilty approved by the state court, and not a question of the constitutionality of the Act, reviewable by this Court. P. 274 U. S. 366.

5. The California Criminal Syndicalism Act, which defines "criminal syndicalism" as

"any doctrine or precept advocating, teaching

Page 274 U. S. 358

or aiding and abetting the commission of crime, sabotage (which word is hereby defined as meaning willful and malicious physical damage or injury to physical property), or unlawful acts of force and violence or unlawful methods of terrorism as a means of accomplishing a change in industrial ownership or control, or effecting any political change,"

and declares guilty of a felony any person who

"organizes or assists in organizing, or is or knowingly becomes a member of, any organization, society, group or assemblage of persons organized or assembled to advocate, teach or aid and abet criminal syndicalism,"

is sufficiently clear and explicit to satisfy the requirement of due process of law. P. 274 U. S. 368.

6. The statute does not violate the Equal Protection Clause of the Fourteenth Amendment in penalizing those who advocate a resort to violent and unlawful methods as a means of changing industrial and political conditions while not penalizing those who may advocate a resort to such methods for maintaining such conditions, since the distinction is not arbitrary, but within the discretionary power of the State to direct its legislation against what it deems an evil without covering the whole field of possible abuses. P. 274 U. S. 369.

7. Such a statute is not open to objection unless the classification on which it is based is so lacking in any adequate or reasonable basis as to preclude the assumption that it was made in the exercise of the legislative judgment and discretion. P. 274 U. S. 369.

8. This Act is not class legislation; it affects all alike, no matter what their business associations or callings, who come within its terms and do the things prohibited. P. 274 U. S. 370.

9. Nor is it repugnant to the Due Process Clause as a restraint of the rights of free speech, assembly, and association. P. 274 U. S. 371.

10. 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. P. 274 U. S. 371.

57 Cal.App. 449; ib., 453, affirmed.

ERROR to a judgment of the District Court of Appeal of California, which affirmed a conviction of the petitioner under the state act against criminal syndicalism. The Supreme Court of California denied a petition for appeal.

On the first hearing in this Court, the writ of error was

Page 274 U. S. 359

dismissed for want of jurisdiction, but later a petition for rehearing was granted. 269 U.S. 530, 538.

Primary Holding

Despite the First Amendment, a state can use its police power to punish speech that undermines the public welfare by inciting criminal activity, disturbing the peace, or advocating the violent overthrow of the government.


Whitney was one of the founders of the Communist Labor Party, which was a radical wing of the Socialist Party that split from the rest of the Party after a convention in 1919. When she attended a convention to organize a California wing of the Labor Party, Whitney exhorted workers to vote for its candidates in elections and advocated for taking political action in a resolution. The Party eventually adopted a more extreme program than what Whitney advocated in her resolution, and she protested to no avail. Whitney was charged with violating the California Criminal Syndicalism Act on the basis that she had helped to organize a group that sought to effect economic and political change through the unlawful use of violence.

She argued that she had not intended the organization to act in this way and did not plan to aid it in those objectives, so she should not be charged merely for attending the convention. Whitney claimed that the California law violated the First Amendment.



  • Edward Terry Sanford (Author)
  • William Howard Taft
  • Willis Van Devanter
  • George Sutherland
  • James Clark McReynolds
  • Pierce Butler
  • Harlan Fiske Stone

The state's police power in the area of speech is not completely eradicated by the First Amendment, since speakers still must exercise their rights responsibly. The state law at issue is targeted at punishing a criminal conspiracy through a combination of advocacy and actions. This is a type of activity that is especially dangerous to public safety, so it fits appropriately within the state's police power without violating the First Amendment.


  • Louis Dembitz Brandeis (Author)
  • Oliver Wendell Holmes, Jr.

The restrictions on government action under the First and Fourteenth Amendments do not extend to situations in which speech creates a clear and present danger of an evil outcome. The actions that the defendant took posed only a remote potential harm to the public, and she was involved only in contributing to the preparation of the actions. To satisfy the clear and present danger standard, the risk of harm must be severe, probable, and so imminent that it could occur before discussion of the matter. Broad statements advocating for revolution at some indefinite date in the future are subject to First Amendment protections.

On the other hand, the Court could not review this conviction because the record showed evidence of a criminal conspiracy, which means that the review is inappropriate without proof that constitutional rights were infringed during the criminal trial.

Case Commentary

The Court's deference to the legislature probably owed much to the paranoia surrounding the rise of Communism during the 1920s. Congress also had made explicit findings about the harm that arose from certain types of speech. This decision essentially accepted those conclusions without independently questioning them.

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