Under California's Criminal
SyndicalismAct, it was a crime to advocate, teach, or aid the
commission of a crime, including "terrorism as a means of
accomplishing a change in industrial ownership...or effecting any
Whitney (a Communist!) was
arrested for espousing ideas about Communism.
Whitney argued that she
wasn't inciting anyone to do anything illegal or to overthrow the
government. She was just teaching the basic tenants of communism.
Whitney was convicted under
the Criminal Syndicalism Act. She
Whitney argued that the law
was an unconstitutional infringement of her right to free speech under the 1st Amendment.
The US Supreme Court upheld
The US Supreme Court found
that freedom of speech is not an
absolute right, but it can be limited by reasonable government concerns.
In this case, the Court
found that the law was not an arbitrary and unreasonable exercise of a
States' police power, and therefore it was constitutional.
That's known as the reasonableness
See Gitlow v. New York (268 U.S. 652 (1925)).
In a concurrence it was argued
that the reasonableness approach
was too broad, and that the Court should go back to the previous standard,
the clear and present danger
test, where speech was protected unless it presented a "clear and
It was argued that even
unpopular ideas are important to public discourse, and so should not be
censored unless they are truly dangerous, the danger is 'serious', and
the State can clearly define the danger.
Generic 'fear' is not enough
to be a danger. There must be a reasonable ground to believe that
serious, imminent evil will result if free speech is allowed.
'Advocacy' should be
protected, only 'Incitement' should be unprotected.
Suppressing speech leads to
resentment, which can result in even more extreme behavior by those who
are not allowed to express themselves.
See Schenck v. United
States (249 U.S. 47 (1919)).