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,
- “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
“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.
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
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
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.