- Person
- Louis Brandeis
- Lived
- 1856–1941
- Field
- Law
- From
- American
The story
In the conservative years during and after the First World War, the Supreme Court repeatedly upheld the punishment of people for their political speech. Justices Louis Brandeis and Oliver Wendell Holmes Jr. often stood together in dissent in defence of free speech. The legal historian John Raeburn Green wrote that Holmes's deep attachment to freedom of expression began in 1919, roughly when Brandeis's influence on him began.
Whitney v. California concerned Anita Whitney, a member of a distinguished California family, who had been convicted under the state's 1919 Criminal Syndicalism Act for helping to establish the Communist Labor Party, which the state accused of advocating violent overthrow of the government. In 1927 the Court unanimously upheld her conviction under a broad test that allowed speech with a 'bad tendency' to be punished.
Brandeis wrote a concurring opinion, joined by Holmes, that pointed the law in a very different direction. He tightened the 'clear and present danger' test: speech could be punished only if the harm feared was so imminent that it might happen before there was time for full discussion. Fear of serious injury, he wrote, cannot alone justify suppressing free speech; 'men feared witches and burnt women'. The function of free speech is to free people from the bondage of irrational fears, and those who won American independence were not cowards who exalted order at the cost of liberty.
The opinion had an immediate practical effect: shortly after the ruling, the governor of California pardoned Anita Whitney, citing Brandeis's reasoning. According to the legal historian Anthony Lewis, scholars have praised the opinion as perhaps the greatest defence of freedom of speech ever written by a member of the Supreme Court.
In 1969, in Brandenburg v. Ohio, the Court explicitly overruled Whitney and adopted a test close to Brandeis's: speech may be punished only if it is directed to inciting imminent lawless action and likely to produce it. That standard still protects political speech in the United States today.
Why it matters
Brandeis's reasoning in Whitney became a cornerstone of modern American free speech law, protecting dissenters, journalists and minorities from punishment for their ideas.
About Louis Brandeis
“The People’s Lawyer” who became the first Jewish Supreme Court justice in 1916, wrote classic defences of free speech and privacy, and led American Zionism.
More about Louis Brandeis
- Louis Brandeis, the "People's Lawyer" on the Supreme CourtLouis Brandeis, known as "the People's Lawyer", became the first Jewish US Supreme Court justice in 1916 and wrote some of the greatest defences of free speech and privacy.
- Louis Brandeis took on J. P. Morgan's railroad monopolyFrom 1907 Louis Brandeis fought unpaid for nine years to stop J. P. Morgan's New Haven Railroad monopolising New England's railways, and his warnings proved right.
- Louis Brandeis defended "the right to be let alone"Louis Brandeis's 1928 dissent against warrantless wiretapping in Olmstead v. United States was vindicated in 1967, when the Supreme Court overturned Olmstead in Katz v. United States.
- Louis Brandeis brought fair life insurance to workersAfter finding that most low-wage workers' life insurance policies lapsed unpaid, Louis Brandeis created Massachusetts savings bank life insurance, signed into law in 1907.
- Louis Brandeis called sunlight the best disinfectantIn a 1913 Harper's Weekly article Louis Brandeis wrote that "sunlight is said to be the best of disinfectants", a line that still defines the case for open government.
- Louis Brandeis helped design the Federal Trade CommissionLouis Brandeis urged Woodrow Wilson to give the government real power to enforce antitrust law and became one of the architects of the Federal Trade Commission.
- Louis Brandeis held 57 hearings to reform Boston poorhousesIn 1894 Louis Brandeis spent nine months and held 57 public hearings on Boston's poorhouses, leading the city to completely reorganise how it cared for the poor.
Sources
- Louis Brandeis Wikipedia
- Whitney v. California Wikipedia
Another act of tikkun olam. This is part of tikkun olam, the Jewish idea of repairing the world, and every one of us can add to it.