Brandeis, the Whitney case, and the XIVth amendment

[KarlGauss]

Louis Brandeis would seem to have been a most remarkable man and jurist. Even I, with only a superficial acquaintance of his life and accomplishments, can begin to appreciate how his ideas and opinions have influenced US laws and their interpretation long after his death.

I am confused though about his famous concurrence in the Whitney case. Now, it is quite possible that I simply have misunderstood things or that my “sources” (i.e. Wikipedia :dubious:) are ambiguous and if so, I apologize. Still, I will note, that in his concurrence Brandeis seems to make it clear that he felt Whitney’s 1st Amendment rights were not being respected. As I understand it, however, because the appeal was predicated on issues arising from the XIVth amendment, he let it slide and concurred, i.e. from a XIVth amendment perspective, the law she was convicted under was found constitutional meaning that she was not aggrieved or unjustly treated in that sense. My question is why he couldn’t still find in her favor, but based on 1st amendment principles. Or, is it the case that a SCOTUS justice must stick to the specifics of the appeal and not introduce new elements? (which I would doubt very much).

Bottom line: Why, if as is evidenced by his writings in his concurrence, Brandeis so clearly supported Whitney’s right to establish and participate in the workings of the ‘Communist Labor Party’ (while making “the greatest defense of freedom of speech ever written by a member of the high court”), did he not dissent in Whitney? Even though the law used to convict her did not violate the XIVth amendment, could he not have found in her favor using 1st amendment considerations?

Thanks!

[Northern_Piper]

I think the answer simply is that the law on the First Amendment has evolved significantly over the past century. Holmes J. had set out the “clear and present danger” approach in Schenck, which allowed laws to restrict freedom of expression, and Brandeis J. was still using that approach. However, his elaboration of the values of free speech and the First Amendment in his concurrence in Whitney pointed the way towards a much more absolutist approach to freedom of speech, ultimately championed by Douglas J. and Black J. This point is made later in the wiki article:

Justice William O. Douglas believed that had Brandeis lived longer, he would have abandoned the clear and present danger test; Whitney is in fact the precursor to the position Douglas and Hugo L. Black would take in the 1950s and 1960s, that freedom of speech is absolutely protected under the First Amendment. Brandeis does not go that far here, and his views were ultimately adopted by the Court in Brandenburg v. Ohio, 395 U.S. 444 (1969), which explicitly overruled Whitney.

The “clear and present danger” approach was itself a major step forward in First Amendment analysis; but remember that Holmes J. used it in Schenck to uphold a similar conviction under the Espionage Act.

So why didn’t Brandeis J. go further? Well, judges are the product of their times, and the law as it exists. He may have thought that “clear and present danger” was a highly protective standard and a major advance in the law, and was content with it.

In retrospect, we can point to Brandeis J.'s decision as saying that it showed the way forward; however, there was no guarantee of that. Subsequent judges may have been content with the “clear and present danger” approach, which would have resulted in greater acceptance of government restrictions on speech.

[Freddy_the_Pig]

@KarlGauss

Even though the law used to convict her did not violate the XIVth amendment, could he not have found in her favor using 1st amendment considerations?

No. No law passed by the state of California can “directly” violate the 1st amendment: “Congress shall make no law . . . abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” California is not Congress.

California can violate the 1st amendment only through the operation of the 14th amendment: “nor shall any State deprive any person of life, liberty, or property, without due process of law;”. Under the “doctrine of incorporation”, loosely speaking, state laws which would violate the first amendment if they were passed by Congress deprive people of life, liberty, or property without due process of law.

So in this case, there is no such thing as a 1st amendment violation which is not also a 14th amendment violation.

As for why Brandeis found no 1st/14th violation, his opinion speaks better than I could:

In the present case, however, there was other testimony which tended to establish the existence of a conspiracy, on the part of members of the International Workers of the World, to commit present serious crimes, and likewise to show that such a conspiracy would be furthered by the activity of the society of which Miss Whitney was a member. Under these circumstances, the judgment of the state court cannot be disturbed.

[MikeS]

@KarlGauss

Or, is it the case that a SCOTUS justice must stick to the specifics of the appeal and not introduce new elements? (which I would doubt very much).

To answer this question, the judges can rule on matters that haven’t been explicitly argued by the parties to the case; it’s called a sua sponte judgement, and while not common, does happen from time to time.

[KarlGauss]

Aha, I see (I think). Thank you.

A bit more reading makes think that what I was getting at in the OP would become a function of incorporation.

ETA: And to be sure I am understanding, before incorporation, it would have been possible for a state to violate someone’s First Amendment rights so long as the state (and law) that did so had observed ‘due process’?

[Polycarp]

@KarlGauss

Aha, I see (I think). Thank you.

A bit more reading makes think that what I was getting at in the OP would become a function of incorporation.

ETA: And to be sure I am understanding, before incorporation, it would have been possible for a state to violate someone’s First Amendment rights so long as the state (and law) that did so had observed ‘due process’?

Precisely. Although note that:

1. “Due process” does not mean in this context to a constitutional scholar what anyone else would have taken it to mean. (Cf. Bricker’s posts on the subject)
2. Although most states guaranteed some or all First Amendment rights in their own state constitutions, there would not be a federal question present, so the highest state court would be the final arbiter.
3. SCOTUS is delimited by Article III to resolving real “cases and cpntroversies” (although the justice are not above allowing “quasi-collusive” suits, as when James W. Carter, president of Carter Coal Co., duly complied with the New Deal’s Guffey Coal Act, and then instituted suit against the company as a stockholder for having done so, in order to test the constitutionality of the Guffey Act.)
4. This means that the justices usually address only the question raised in the suit (though not necessarily using only the arguments raised in arguing it), and tend to tailor their opinions to be as narrow as possible. Though the majority of famous opinions are broad and sweeping, and many address issues the court took up sua sponte, such decisions are quite rare – they are famous precisely because they set broad new law, not for being typical.