The Act under which Whitney was charged contained a prohibition against engaging in "criminal syndicalism," which was defined in the Act as the aiding and abetting of crime, sabotage, acts of force, terrorism, with a view to bringing about a change in industrial ownership or poltical change. One can tell by reading the section of the Act that is was really designed with the red menace in mind, much the way Austria's hate speech laws are made to deal with Nazi expressions and ideas. A subsection of the Act made it a felony to assist in the organizing of any group that would engage in violent revolutionary tactics or advocate same.
Whitney argued that the Act was unconstitutional, because it violated rights of due process and equal treatment under the law. Her third ground of appeal, that the law was repugnant to the first amendment, was also rejected by the majority, the opinion of which was written by Justice Sanford. Of the right to freedom of expression, Justice Sanford wrote, "the freedom of speech which is secured by the Constitution does not confer an absolute right to speak." It is not, he held, an "unrestricted and unbridled license giving immunity for every possible use of language and preventing the punishment of those who abuse this freedom." Using the "clear and present danger" test formulated by Justice Holmes in the Gitlow case, the majority ruled that it was obvious the danger posed by Marxist incitement to revolution and violence was a sufficiently proximate risk to justify the curbing of free speech rights.
Two judges, Justices Brandeis and Holmes, wrote a separate opinion. Concurring in the result because they found the Supreme Court's limited power of review did not extend far enough to overturn the conviction, they nonetheless provided a far more vigorous defence of the first amendment than did the majority. The dissent, written by Justice Brandeis, is still regarded as perhaps the definitive encapsulation of the meaning and importance of freedom of speech.
Justice Brandeis gave his assessment of the first amendment's origins in the birth of America as an independent nation. The founders, he wrote, understood the dangers of political violence and the often precarious nature of representative, democratic government. However, they also understood that the best protection for free peoples was not the suppression of thought and imagination - because such intervention would breed fear, resentment, and would in the end lead to greater violence and instablility. Instead, the judge wrote, "the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies." (This is the true public safety argument when it comes to free speech, by the way). Addressing the issue of public order, Brandeis wrote some brilliant lines:
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. To justify suppression of free speech there must be reasonable ground to fear that serious evil will result if free speech is practiced. There must be reasonable ground to believe that the danger apprehended is imminent. There must be reasonable ground to believe that the evil to be prevented is a serious one.
He continues, on the same theme:
Moreover, even imminent danger cannot justify resort to prohibition of these functions essential to effective democracy, unless the evil apprehended is relatively serious. Prohibition of free speech and assembly is a measure so stringent that it would be inappropriate as the means for averting a relatively trivial harm to society.
This case should be required reading for anyone who thinks that the Boissoin case is anything like good law.