by Peter Irons
Arguments that the Fourteenth Amendment’s Due Process Clause “incorporated” all or parts of the Bill of Rights and applied their protections to the states had been made before 1925. But the Court had steadfastly rejected this notion until justice Sanford stated without fanfare that “we may and do assume that freedom of speech and of the press—which are protected from abridgement by Congress—are among the fundamental personal rights and ‘liberties’ protected by the due process clause of the Fourteenth Amendment against impairment by the States.” This was a constitutional breakthrough, worthy of headlines in newspapers across the nation, or at least in the New York, Times. But Sanford’s bland sentence passed without notice at the time. And it did not help Benjamin Gitlow.
Having brought the New York law within the First Amendment’s reach, Sanford looked at Gitlow’s case as if the free speech clause had no relevance. He treated the Schenck, and Debs cases very oddly, and in highly opaque language. The “clear and present danger” and “natural tendency” tests of those cases did not apply to the criminal anarchy law, Sanford wrote, since the federal Espionage Act punished “certain acts involving the danger of substantive evil, without any reference to language itself” as an essential part of those criminal acts. This was nonsense, since the “acts” for which Schenck and Debs went to prison necessarily involved the content of their speech; they would not have faced prosecution for speech that supported the war effort. Sanford clearly engaged in such obfuscation because the record in Gitlow’s case, as he conceded, showed “no evidence of any effect resulting from the publication and circulation of the Manifesto.” But this did not matter, since the New York legislature had “determined the danger of a substantive evil arising from utterances of a specified character.” In other words, given the legislative finding that the state would be imperiled by advocacy of “the doctrine that organized government should be overthrown by force or violence,” there was no need to show a “clear and present danger” from the “Left Wing Manifesto” or that its “natural tendency” would be to incite revolutionary acts. Simply advocating that doctrine would violate the law, with no protection from the First. Amendment.
Sanford’s badly and broadly written opinion did much greater harm to the principle of free speech than any of Holmes’s efforts to link the “circumstances” of speech with the “evils” it might Stanford held that states could exercise their “police powers” to punish “utterances” that lawmakers decide “by their very nature, involve danger to the public peace and to the security of the state.” He cited earlier cases upholding state regulation of liquor and railroad rates for support, because citation of Schenck or Debs would have required some showing—however tenuous or speculative—that the “Left Wing Manifesto” posed a danger to New York that was not remote or negligible. The state did not even attempt such a showing, forcing Sanford to set the First Amendment aside and base his ruling on the “police powers” doctrine. But the First Amendment was designed as a check on those, powers, which—if unrestrained—could make any unpopular “utterance” a criminal offense.
Something about incendiary political rhetoric inspires justices to use “fire” analogies in their opinions. Sanford replied to Holmes’s “falsely shouting fire” example of unprotected speech with his own metaphor. “A single revolutionary spark may kindle a fire that, smouldering for a time, may burst into a sweeping and destructive conflagration,” he wrote. “It cannot be said that the State is acting arbitrarily when in the exercise of its judgment as to the measures necessary to protect the public peace and safety, it seeks to extinguish the spark without waiting until it has enkindled the flame or blamed into the conflagration.” How long might a rhetorical fire “smoulder” before it burst into revolution? Sanford did not say, or even hazard an estimate. His “smouldering” test was not tied to the “circumstances” of speech; New York could “extinguish” any revolutionary “utterance” at any time, because it might someday prompt someone to burn down the capitol in Albany.
Justice Holmes could not resist the impulse to reply to Sanford in kind. He responded to twenty pages of opinion with less than two, scolding his junior colleague as a parent would scold a child playing with marches. Embracing with renewed fervor the “clear and present danger” test he devised in Schenck, Holmes wrote that applying the “correct test” to Gitlow would have revealed “no present danger” to New York from the “left Wing Manifesto.” He matched Sanford’s “smouldering” metaphor with his own. “Every idea is an incitement,” Holmes wrote. “Eloquence may set fire to reason.” But the “redundant discourse” of the manifesto “had no chance of starting a present conflagration.” It was the job of judges, not lawmakers, to look at “circumstances” and assess “whether there was any danger the publication could produce any result” that might harm the state. “But the indictment alleges the publication and nothing more,” he complained. That was not enough to satisfy Holmes, or the First Amendment.
Charlotte Whitney waited two more years for a ruling on her appeal. One reason the Court delayed its decision until May 1927 was that her wealthy family had retained two prominent corporate lawyers to defend her in the California courts. They did not raise any First Amendment challenge to California’s criminal syndicalism law in 1920, which is not surprising, since Barron v. Baltimore had blocked that path since 1833. The justices could have declined to hear Whitney’s appeal, because her lawyers had not raised a “federal question” at trial, which normally would foreclose Supreme Court review of a decision based on state law. In fact, the Court dismissed her first petition for review in 1925, shortly after its Gitlow decision. But a new set of lawyers from the American Civil Liberties Union stepped in and took Whitney’s case back to California; they persuaded state judges to consider a claim that the law was “repugnant” to the Fourteenth Amendment’s Due Process Clause. The ACLU team was headed by Walter Pollak, a prominent New York corporate lawyer who plunged into free speech cases and had argued—and lost—the Gitlow case in the Supreme Court.
The California judges denied Pollak’s new claim without opinion, but they placed it on the record, and he persuaded the Supreme Court to reconsider Whitney v. California in 1927. Writing again for the Court, Justice Sanford reviewed the case’s tangles procedural history and sniffed that Pollak’s move “is not to be commended” as a tactic for gaining a rehearsing. Sanford did not explain why the justices bent their rules in this case; most likely, the conservative majority wanted to warn political radicals that not only could publishing calls for revolution be punished—as Gitlow had ruled-but that simply joining a “revolutionary” group could lead to prison.
Sanford devoted less than two pages to the First Amendment issue in his Whitney opinion. He quoted his own words in Gitlow for the proposition that revolutionary “utterances” could be punished. But he needed to go another step, since Whitney had not been prosecuted for “utterances” of any kind, but simply for joining the Communist Labor Party. Sanford returned to Gitlow and cited the liquor and railroad regulation cases from that opinion to establish state “police powers” over the advocacy of revolutionary doctrine. The act of “joining and furthering an organization” with revolutionary goals, Sanford concluded, was a form of advocacy that made Whitney part of a “criminal conspiracy” whose “united and joint action involves even greater danger to the public peace and security than the isolated utterances and acts” of individuals. Charlotte Whitney was an active organizer, but Sanford’s opinion could be stretched by zealous prosecutors and compliant judges to expose every member of radical groups to criminal charges.
Justice Holmes, having already scolded Sanford in his Gitlow dissent, held his tongue in Whitney. However, Justice Louis Brandeis felt compelled to respond and to voice his own First Amendment views. But he faced two problems. First, he did not think the Court should have heard the case at all, because Waltet Pollak’s belated due process challenge “was not taken in the trial co
urt:” Second, Whitney’s trial lawyers had not made any effort to counter the state’s claim that her party posed a “clear and present danger” to California. Charlotte Whitney paid a price for their mistakes. Brandeis, whose trial skills were unmatched, looked at the record and found “evidence on which the court or jury might have found that such danger existed.” He reluctantly concluded that “the judgment of the state court cannot be disturbed.”
Given this position, Brandeis could hardly dissent from the Court’s ruling. But he also felt strongly about the free speech issues, so he wrote a lengthy concurring opinion—which read like a dissent.—in which Holmes joined. Brandeis, spoke with eloquence and passion about the values of an earlier generation of revolutionaries. “Those who won our independence believed that the final end of the State was to make men free to develop their faculties,” he wrote, “and that in its government the deliberative forces should prevail over the arbitrary.” He spoke of the men who framed the First Amendment: “Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed.”
Brandeis matched Holmes in the power of his prose. “Fear of serious injury cannot alone justify suppression of free speech and assembly,” he wrote. “Men feared witches and burnt women. It is the function of speech to free men from the bondage of irrational fears.” Brandeis refined Holmes’s “clear and present danger” test in words that underscored the state’s burden in proving that “immediate serious violence” would occur if speech was not suppressed. “If there be time to expose through discussion the falsehood and fallacies” of revolutionary speech, he added, “the remedy to be applied is more speech, not enforced silence. Only an emergency can justify repression. Such must be the rule if authority is to be reconciled with freedom. Such, in my opinion, is the command of the Constitution.”
The Gitlow and Whitney cases grew out of the “Red Scare” that gripped the country in the wake of World War I and the Bolshevik Revolution in Russia. Once the national hysteria faded, calmer voices prevailed. Governor Al Smith of New York pardoned Benjamin Gitlow in 1925, and Governor Charles Young of California spared Charlotte Whitney a prison term in 1927. Even when the Communist Party grew in strength and numbers during the Great Depression of the 1930s, the Supreme Court reversed convictions of party organizers under laws identical to those upheld in Gitlow and Whitney. Two cases decided in 1937 showed the Court’s reluctance to stifle revolutionary speech. Dirk De Jonge was arrested for speaking in 1934 at a Communist Party meeting in Portland, Oregon, that was broken up by police. “Someone hollered ‘Cops’ and disorder broke out immediately, some making a run for fire escapes, stairways and windows,” a state’s witness testified at De Jonge’s trial. He was sentenced to seven years for violating Oregon’s criminal syndicalism law, which was identical in wording to the California law upheld in Whitney. But in reversing De Jonge’s conviction, the Court did not overrule that case, despite the virtual identity of the facts and laws in both cases. Chief Justice Charles Evans Hughes avoided the constitutional issue by faulting the Oregon court for upholding De Jonge’s conviction simply for speaking at the Communist meeting, “regardless of what was said or done at the meeting.” Hughes ruled that “peaceable assembly for lawful discussion cannot be made a crime.”
Every justice voted with Hughes in De Jonge v. Oregon except Stone, who did not participate because of illness but certainly agreed with the outcome. Why, then, did the Court decide not to overrule Gitlow and Whitney, which could hardly be squared with Hughes’s opinion? It was not because of any reluctance to overturn earlier decisions; two weeks before De Jonge was decided, the justices had voted in West Coast Hotel v. Parrish—a ruling that upheld a state minimum wage law—to overrule the Adkins decision of 1923, although Stone’s illness held up the opinions until March 1937. Most likely, Chief Justice Hughes—who also wrote for the Court in West Coast Hotel over the heated dissent of the “Four Horsemen of Reaction”—knew he could not persuade them in De Jonge to further limit the government’s power to punish “dangerous” speech.
Although the Four Horsemen joined the De Jonge majority, they all dissented in April 1937 from a decision that reversed the conviction of Angelo Herndon, a black Communist organizer convicted in 1932 of inciting fellow blacks to “insurrection” in Georgia. The state law exposed anyone who attempted “to induce others to join in any combined resistance to the lawful authority of the State” to a death penalty; Herndon’s all-white jury had recommended “mercy" and the judge sentenced him to eighteen years in prison. Justice Owen Roberts followed Hughes’s lead in De Jonge and wrote a narrow opinion in Herndon v. Lowry. Roberts stressed the fact that Herndon’s organizing efforts consisted of holding three meetings for “discussion of relief for the unemployed.” It was clear that Angelo Herndon, like Dirk De Jonge, was arrested solely for being a Communist organizer. Making “membership in a party and solicitation of members for that party a criminal offense, punishable by death,” Roberts wrote, “is an unwarranted invasion of the right of freedom of speech.” But he did not base his opinion on that point, ruling instead that Georgia’s “insurrection” law set no “reasonably ascertainable standard of guilt” and was so “vague and indeterminate” that it violated the Fourteenth Amendment’s Due Process Clause.
Justice Willis Van Devanter wrote for the Four Horsemen in the Herndon case. His dissent reeked of racism. “It should not be overlooked that Herndon was a negro member and organizer in the Communist Party and was engaged actively in inducing others, chiefly southern negroes, to become members of the party,” he wrote. Van Devanter pointed to literature found in Herndon’s room advocating “self-determination for the Black Belt,” the party’s slogan for an independent black nation in the Deep South. The “past and present circumstances” of blacks, he added, “would lead them to give unusual credence” to the “inflaming and inciting features” of this proposal. Georgia’s lawyers presented no evidence that Herndon had given anyone—black or white—this literature; Van Devanter nonetheless concluded that “distribution by him reasonably could be inferred” and that its contents were “nothing short of advising a resort to force and violence, for all know that such measures could not be effected otherwise.”
The decisions in De Jonge and Herndon marked a retreat from the Court’s hostility toward radical speech in the Gitlow and Whitney cases. Reversing the criminal convictions of Dirk De Jonge and Angelo Herndon reflected two facts: first, that during the Great Depression, the Communist Party had gained recruits and political influence; and second, that both party organizers were fairly small fish and posed no threat to Oregon or Georgia. But these decisions also showed the Court’s reluctance to deprive state prosecutors of their legislative weapons against Communists and other revolutionaries, should the danger of left-wing insurrection ever become real. Unwilling to break ranks with the Four Horsemen, the Court’s majority left Gitlow and Whitney on the books, available as precedent in later cases that raised issues of “revolutionary” speech and organizing.
23
“The General Welfare of the United States”
The Great Depression began with a loud crash in October 1929. When the rubble from the stock market collapse had settled, millions of Americans had lost their jobs, homes, businesses, farms, and hopes for the future. Factory managers locked their gates and store owners shuttered their windows; sheriff’s deputies served eviction notices on families that failed to make their mortgage payments; farmers slaughtered pigs, dumped milk, and burned wheat as prices sank below the cost of production. Dry statistics cannot fully convey the human toll: the stock market lost almost 90 percent of its value between 1929 and 1933; industrial production fell more than 50 percent during this period; some fifteen million workers—almost a third of the workforce—lost their jobs; farm income continued its postwar slide from $17 billion in 1919 to $5 billion in 1932.
Once aga
in, the national economy had fallen victim to rampant speculation, with financial gamblers shifting their bets from land to stocks. The paper prosperity of the 1920s had created a new class of the nouveau riche, whose extravagant lives were chronicled by F. Scott Fitzgerald in The Great Gatsby. Sinclair Lewis portrayed the complacent middle class in Main Street and Babbitt, while the gaunt faces of the rural poor stared blankly from the photographs in James Agees’book Let Us Now Praise Famous Men. There was, in truth, little to praise in the words and acts of famous men. Shortly before the Crash, President Herbert Hoover—who replaced Calvin Coolidge as president in 1929—spoke with assurance: “We in America today are nearer to the final triumph over poverty than ever before in the history of any land.” A few months later he urged the jobless to turn for relief to private charity; Hoover’s “self-reliant” view of government included no role in relieving poverty. Henry Ford, the nation’s leading employer, spoke of hiring more workers in March 1931: “There is plenty of work to do if people would do it.” A few weeks later his managers handed out 75,000 pink slips to laid-off autoworkers.