Anita Whitney, Louis Brandeis, and the First Amendment

The lives of suffragist-communist-socialite Anita Whitney and Supreme Court Justice Louis Brandeis converged in the first quarter of the twentieth century when her 1920 conviction for violating the state’s Criminal Syndicalism Act led to Brandeis’s now classic Whitney v. California concurring opinion. It was during the Red Scare of 1919-20 that Whitney was arrested, tried, and convicted for her participation in the founding of the Communist Labor Party in California; seven years later, the U.S. Supreme Court upheld her conviction, with Brandeis writing a concurring opinion (which read like a dissent) in which he warned against the politics of fear, declaring ‘fear breeds repression; repression breeds hate’ and finally reminding us that ‘men feared witches and burnt women.’ Brandeis eloquently argued that the citizen’s participation in public discussion is a ‘political duty.’ Before and after the High Court decided against her, Whitney had actively participated in the public debates, arguing for woman suffrage, for racial equality, and anti-lynching laws, for workers’ free speech and assembly rights. Eventually, Whitney was vindicated when she was pardoned by California’s Governor C.C. Young and when in 1969 the Supreme Court declared in Brandenburg v. Ohio that ‘Whitney has been thoroughly discredited’ and ‘overruled.