First Amendment topicsAbout the First Amendment
Article digs up new info on old First Amendment case

By David L. Hudson Jr.
First Amendment Center research attorney

A new law-review article resurrects a lost opinion by former U.S. Supreme Court Justice Louis Brandeis in trying to explain why the noted First Amendment defender wrote a ringing free-speech defense into a concurrence in a 1927 ruling against a free-speech claim.

The article, by Ronald Collins, First Amendment Center scholar, and David Skover, Seattle University law professor, is certain to draw attention. “Curious Concurrence: Justice Brandeis’ Vote in Whitney v. California appears in the 2005 Supreme Court Review (p. 333).

Major opinion, ironic vote
Brandeis has been called one of the intellectual godfathers of the First Amendment, along with his colleague Justice Oliver Wendell Holmes. Ironically, Brandeis’ most eloquent statements on the First Amendment can be found in his concurring opinion in Whitney v. California, a case in which the Supreme Court unanimously sustained the conviction of socialist Charlotte Anita Whitney for her alleged role in assisting Communist Party activities in the state.

Brandeis penned many memorable phrases in his concurring opinion that have taken their rightful place in the pantheon of First Amendment lore, including:

  • “that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government.”
  • “that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and the fitting remedy for evil counsels is good ones.”
  • “Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches and burnt women. It is the function of speech to free men from the bondage of irrational fears.”
  • “If there be time to expose through discussion the falsehoods and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.”

Many of these oft-cited phrases embody the primary justifications for freedom of expression. The principle that a “path of safety lies in the opportunity to discuss freely supposed grievances” forms the basis for the safety-valve justification of the First Amendment — in other words, society is better served by allowing speakers to vent their frustrations rather than drive them underground. The “time to expose through discussion” passage forms the basis of the “counterspeech doctrine” — that the best response to negative speech is not forced censorship, but reasoned response.

One of the great ironies of First Amendment history is that Brandeis’ eloquent defenses of free speech appeared in an opinion that affirmed the conviction of Whitney, hardly a dangerous figure in American society. Some have wondered why Brandeis would include such a powerful defense of free speech in an opinion where he voted uphold a dubious criminal conviction.

The Collins and Skover article sets out to shed new light on this interesting mystery.

“David and I were long troubled by the fact that Brandeis wrote a most speech-protective opinion and nonetheless sustained the conviction of Anita Whitney,” Collins said.

The article explains that much of Brandeis’ thinking on free speech was actually contained in his opinion in Ruthenberg v. Michigan, an unpublished First Amendment case from 1927. “In his Ruthenberg dissent, Brandeis first introduced the lofty free-speech principles that later found their way into his Whitney concurrence,” Collins and Skover write.

Ruthenberg’s resurrection
Collins and Skover tell the stories of the largely forgotten Charles Emil Ruthenberg and of Whitney. It is odd that history remembers Whitney but not Ruthenberg, the former executive secretary of the Communist Party. “The free-speech story of Charles Ruthenberg and Anita Whitney is a study in contrasts, and an ironic tale of how a notorious dissident was lost to legal history whereas a minor figure was catapulted into it,” Collins and Skover write.

Brandeis’ dissent in Ruthenberg would have become a leading light of First Amendment law instead of his Whitney concurrence were it not for Ruthenberg’s untimely death from acute peritonitis in March 1927 before the release of the Court’s opinion. Hence, Brandeis' dissent in Ruthenberg was withdrawn and lost to history until the Collins and Skover article, which includes the opinion in an appendix.

“There are so many incredible ironies in this story,” Skover says. “We wanted to resurrect that history and attempt to help solve the legal riddle about why Brandeis concurred.”

Some of the riddle persists, however.

“It remains a bit of a puzzle why Brandeis thought Whitney's lawyers should have sought [as Brandeis demanded] a clear-and-present-danger instruction at the time of Whitney's trial, but Collins and Skover clearly demonstrate Brandeis's reasoning and the complexity underlying his decision to concur rather than to dissent in Whitney,” said University of Chicago law professor Geoffrey Stone, who is also one of the editors of Supreme Court Review.

“The [Collins-Skover article] sheds new light on the historical context of the case and on the circumstances within the Court that led to the Brandeis concurrence,” Stone said. “It offers a fresh perspective on one of the most interesting and important First Amendment opinions ever written.”

He added: “The previously unpublished draft opinion of Justice Brandeis in the Ruthenberg case shows the evolution of Brandeis' thinking and the development of both the ideas and rhetoric on his opinion in Whitney.

For those not quite at ease with law review articles, there is good news. Collins and Skover plan to expand their article into a book replete with additional facts, photographs and further discussion of the fascinating facts surrounding Justice Brandeis’ seminal opinion.


Brandeis free-speech dissent published online for 1st time

Previously unpublished 1927 opinion by Supreme Court Justice Louis Brandeis illuminates his thinking on freedom of speech. 09.15.06

Justice Frank Murphy: 'champion of First Amendment freedoms'
By David L. Hudson Jr. Oft-overlooked free-speech giant distinguished himself during his years on high court as passionate defender of individual liberties. 11.21.06

Brandeis Univ.: Giving free speech a bad name
By Nat Hentoff Administrators' treatment of professor accused of 'discriminatory conduct' for teaching about racial slur dishonors university's namesake. 10.06.08

Justice Brandeis' dissent in Ruthenberg

Analysis/Commentary summary page
View the latest analysis and commentary throughout the First Amendment Center Online.

print this   Print

Last system update: Thursday, November 13, 2008 | 19:33:17
About this site
About the First Amendment
About the First Amendment Center
First Amendment programs
State of the First Amendment

First Reports
Supreme Court
First Amendment publications
First Amendment Center history
Freedom Sings™
First Amendment

Congressional Research Service reports
Guest editorials
FOI material
The First Amendment

Lesson plans
Contact us
Privacy statement
Related links