Stephanie's Reviews > Anita Whitney, Louis Brandeis, and the First Amendment

Anita Whitney, Louis Brandeis, and the First Amendment by Haig A. Bosmajian
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Sep 21, 2011

it was amazing
Read in June, 2011

When I started law school, I was given a copy of an article (Mark Herrmann, Revisiting the Basics: How to Write – A Memorandum from a Curmudgeon, The Advocate, Sept. 2001, at 28-29 (reprinted by permission from Litigation (Vol. 24, No. 1, Fall 1997)) in the form of an internal memo to “New Associate” from “Curmudgeon” instructing the new associate how to write. Chief among Curmudgeon’s dictates are “write in short sentences,” “use only the active voice,” and “little pieces are easier to read.” Dryly, Curmudgeon directed, “When writing your argument, remember that we are practitioners, not academics. Your professors discussed cases because they found cases to be interesting. We prefer statutes or rules to cases.” Truly, Curmudgeon’s advice is sound. I keep the article in my desk drawer and strive to keep my briefs short and sweet (though more often honoring Curmudgeon’s rules in the breach than by observance).

This is why I felt simultaneously shamed and envious upon reading Haig Bosmajian’s (Professor Emeritus at the University of Washington Speech/Communications Department) excellent Anita Whitney, Louis Brandeis, and the First Amendment. In his book, Professor Bosmajian analyzes the writerly process Justice Brandeis employed in composing his concurring opinion in Whitney v. California, 274 U.S. 357 (1927), a concurrence that has become the cornerstone of First Amendment speech jurisprudence. Justice Brandeis was no harried and hurried practitioner, writing in careless prose and adhering to the dictates of the five-day motion calendar. Instead, revising and editing his words in multiple drafts over at least a ten-month period, he interposed powerful epigrams (“Men feared witches and burnt women.” Whitney, 274 U.S. at 376) among figure-of-speech-laden sentences in a concurrence that explained first why our founders valued free speech – “They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth” (Whitney, 274 U.S. at 375) – and then articulated the extremely limited circumstances under which our government can abridge it – “If there be time to expose through discussion the falsehoods and fallacies [of “dangerous” speech], to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence. Only an emergency can justify repression” (Whitney, 274 U.S. at 377).

Professor Bosmajian, in exploring the figures of speech Justice Brandeis used and in recounting the evolution of his multiple revisions, carefully unpacks the layers of meaning upon which the relatively brief concurrence is founded and shows us precisely why it resonates so powerfully. Consider this: in a revision dated August 30, 1926, Justice Brandeis opened a paragraph with “Those who won our independence by revolution and founded our government….” By the time the concurrence was published on May 16, 1927, this phrase had changed to “Those who won our independence….” Whitney, 274 U.S. at 375. The last sentence of the paragraph reads: “Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed.” Whitney, 274 U.S. at 376. The antecedent of “they” is all the way back in the opening phrase, “[t]hose who won our independence.” This particular noun-pronoun relationship shows that Justice Brandeis intended “independence” to mean not merely freedom from England’s rule, but freedom from the tyranny of the majority. Independence was not won by revolution alone, but only by the subsequent founding of a constitutional democracy where free speech and assembly are guaranteed. Professor Bosmajian’s thoughtful and painstaking examination makes explicit this and the other fundamentals on which Justice Brandeis based his concurrence.

Professor Bosmajian thoroughly grounds both Miss Charlotte Anita Whitney – the socialite turned “Red” and the appellant in Whitney v. California – and Justice Brandeis in their times and locales. For example, Professor Bosmajian recounts the story of Anne Hutchinson, who was excommunicated and banished from Massachusetts in 1637-38 for her seditious and heretical ideas. This banished colonial radical is relevant not only because “as a longtime resident of Massachusetts and of Boston, Brandeis was exposed to reminders of the persecution and mistreatment of colonial women who, suspected of witchcraft, were killed, banished, or imprisoned” (Bosmajian at p. 57), but because people like the members of the American Legion and the Daughters of the American Revolution feared people like Anita Whitney as much as the Massachusetts Bay colonists feared Anne Hutchinson. Professor Bosmajian quotes and cites contemporary sources and later scholarly works to evoke the year immediately after the armistice of World War I (“the Great War”) when college women, feminists, suffragists, unionists, socialists, syndicalists, communists, anarchists, Wobblies, alien agitators, Bolshevists, reds, and radicals were feared and reviled by “100% Americans.” “ ‘To be a red in the summer of 1919 was worse than being a hun or a pacifist in the summer of 1917’ ” (Bosmajian at p. 57, quoting John Dos Passos, 1919 457 (1932)).

Who was Miss Whitney, the appellant? Professor Bosmajian chronicles that she was a wealthy California socialite, educated at Wellesley College, a social worker for the poor, Alameda County’s first juvenile probation officer, a charter member of the National Association for the Advancement of Colored People (NAACP), president of the California Equal Suffrage League and the vice-president of the National American Woman Suffrage Association. In 1914, Miss Whitney, “developing associations with the working class,” joined the Socialist Party (Bosmajian at p. 43). She also helped raise money, along with other like-minded folks, for the defense of members of the IWW (the Industrial Workers of the World, “the Wobblies”) who had been brought to trial. They did so “not because they were IWW members but because they were interested in seeing that those who were on trial received adequate legal protection in the judicial system” (Bosmajian at p. 23).

And Miss Whitney’s crime and conviction? In September 1919, the Communist Labor Party (“CLP”) splintered off from the Socialist Party. Miss Whitney participated in its first meeting in Oakland on November 9, 1919, where she joined and helped organize the CLP in California. During that meeting, Miss Whitney advocated for a resolution emphasizing political action, a resolution that was defeated. Instead, the convention “adopted the national CLP program, which was more radical in that it urged following the example of the IWW and seizing power through revolutionary industrial unionism and strikes” (Bosmajian at p. 75). Two weeks later she was arrested and charged under California’s criminal syndicalism law for “advocating, teaching or aiding and abetting the commission of crime, sabotage, … or unlawful acts of force and violence or unlawful methods of terrorism as a means of accomplishing a change in industrial ownership or control, or effecting any political change” (Bosmajian at p. 74, quoting California’s 1919 Criminal Syndicalism Act; California 1919, c. 188). She was tried in early 1920, during an influenza pandemic in which she fell ill and her defense attorney and one juror died. Much of the “evidence” at trial consisted of the lyrics of IWW songs (tarring her, a non-member, with the IWW brush) and the contents of her bookcase. Miss Whitney was convicted of organizing and joining the Communist Labor Party and was sentenced to 1-14 years in San Quentin.

All of Miss Whitney’s appeals – including the appeal to the Supreme Court – were unsuccessful. The highest court in the land upheld her conviction, Justice Brandeis concurring rather than dissenting because the lawyer who defended Miss Whitney (after her original attorney died in the middle of the trial) did not raise the issue of whether “there was in California such a clear and present danger of serious evil” to the trial court. Whitney, 274 U.S. at 379. But Miss Whitney never went to prison; she had earlier posted bond pending appeal, and then, after the Supreme Court issued its decision, California’s Governor C.C. Young pardoned her.

Professor Bosmajian’s detailed account of Miss Whitney’s life and times and her arrest, trial, and conviction, is presented in a reasonably balanced manner. After all, we are reading this account with the benefit of hindsight. There is no doubt about on which side history has come down with a resounding crash. Would any of us want to join the Daughters of the American Revolution in Miss Whitney’s day, who blacklisted “enemy” organizations and individuals including the YWCA, YMCA, NAACP, the U.S. Department of Labor, Felix Frankfurter, W.E.B. du Bois, and Clarence Darrow? (Bosmajian at p. 51). Far better to follow Miss Whitney and fight for women’s right to vote or workers’ right to organize. Yet even as we read the book and wince at the out-dated close-minded bigotry practiced by mainstream middle-class folks, Professor Bosmajian reminds us that Miss Whitney’s trial and conviction occurred merely two years after the Russian Revolution and just one year after the cessation of the hostilities of World War I; it is at least understandable that people were frightened and frankly hysterical about the specter of some kind of a communist revolution or government overthrow. Certainly we – ten years down the road from September 11 – know all too well that our Constitutional safeguards, including the First Amendment jurisprudence anchored in Justice Brandeis’s Whitney concurrence, of our civil liberties are most important when we are most frightened. To discount the power of our fears is to disarm our protections against them.

I do have one small quarrel with Professor Bosmajian. His introduction reads as though it were an overlong précis of his entire book. Some introductory passages are repeated verbatim in later chapters and other passages are repeated but with more explication. I was particularly frustrated by reading, in the introduction, a list of unfamiliar and esoteric figures of speech employed by Justice Brandeis including two – polyptoton and epanalepsis – I could not find in my dictionary, and only understood some hundred pages later when they were defined in context (Bosmajian at p. 31; 131-37). Professor Bosmajian would have served himself and his readers better by composing an introduction that was no mere summary of the book, but one that complemented his book, whetted my appetite, or furthered my understanding of his subject matter.

I am no Justice Brandeis. Even to invite the comparison by denying it is presumptuous. But in the future I am inspired not just to heed Curmudgeon, with her emphasis on short, plain sentences, but to also follow Justice Brandeis’s example and to pack my words with such meaning that a six word epigram says that which one hundred words of careless prose fail to convey. It is a fundamental truth both in our constitutional democracy and in our legal profession that “the remedy to be applied is more speech” (Whitney, 274 U.S. at 377), and we should all, as lawyers and as Americans, endeavor to make our speech as good, and as powerful, as we can.

This review was first published in the September 2011 issue of the Washington State Association for Justice's (WSAJ's) newspaper, Trial News, and is reprinted here with the permission of Trial News.
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