274 U.S. 357 (1927), 3, Whitney v. California

Docket Nº:No. 3
Citation:274 U.S. 357, 47 S.Ct. 641, 71 L.Ed. 1095
Party Name:Whitney v. California
Case Date:May 16, 1927
Court:United States Supreme Court

Page 357

274 U.S. 357 (1927)

47 S.Ct. 641, 71 L.Ed. 1095

Whitney

v.

California

No. 3

United States Supreme Court

May 16, 1927

Argued October 6, 1925

Reargued March 18, 1926

ERROR TO THE DISTRICT COURT OF APPEAL, FIRST APPELLATE

DISTRICT, DIVISION ONE, OF THE STATE OF CALIFORNIA

Syllabus

1. This Court acquires no jurisdiction to review the judgment of a state court of last resort on a writ of error unless it affirmatively appears on the face of the record that a federal question constituting an appropriate ground for such review was presented in and expressly or necessarily decided by such state court. P. 360.

2. Where the fact that a federal question was considered and passed upon by the state court does not appear by the record, it may be shown by a certified copy of an order of that court made after the return of the writ of error and brought here as an addition to the record. P. 361.

3. In reviewing the judgment of a state court, this Court will consider only such federal questions as are shown to have been presented to the state court and expressly or necessarily decided by it. P. 362.

4. The question whether the petitioner, who joined and assisted in the organization of a Communist Labor Party contravening the California Criminal Syndicalism Act, did so with knowledge of its unlawful character and purpose, was a mere question of the weight of the evidence, foreclosed by the verdict of guilty approved by the state court, and not a question of the constitutionality of the Act, reviewable by this Court. P. 366.

5. The California Criminal Syndicalism Act, which defines "criminal syndicalism" as

any doctrine or precept advocating, teaching

Page 358

or aiding and abetting the commission of crime, sabotage (which word is hereby defined as meaning willful and malicious physical damage or injury to physical property), 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,

and declares guilty of a felony any person who

organizes or assists in organizing, or is or knowingly becomes a member of, any organization, society, group or assemblage of persons organized or assembled to advocate, teach or aid and abet criminal syndicalism,

is sufficiently clear and explicit to satisfy the requirement of due process of law. P. 368.

6. The statute does not violate the Equal Protection Clause of the Fourteenth Amendment in penalizing those who advocate a resort to violent and unlawful methods as a means of changing industrial and political conditions while not penalizing those who may advocate a resort to such methods for maintaining such conditions, since the distinction is not arbitrary, but within the discretionary power of the State to direct its legislation against what it deems an evil without covering the whole field of possible abuses. P. 369.

7. Such a statute is not open to objection unless the classification on which it is based is so lacking in any adequate or reasonable basis as to preclude the assumption that it was made in the exercise of the legislative judgment and discretion. P. 369.

8. This Act is not class legislation; it affects all alike, no matter what their business associations or callings, who come within its terms and do the things prohibited. P. 370.

9. Nor is it repugnant to the Due Process Clause as a restraint of the rights of free speech, assembly, and association. P. 371.

10. The determination of the legislature that the acts defined involve such danger to the public peace and security of the State that they should be penalized in the exercise of the police power must be given great weight, and every presumption be indulged in favor of the validity of the statute, which could be declared unconstitutional only if an attempt to exercise arbitrarily and unreasonably the authority vested in the State in the public interest. P. 371.

57 Cal.App. 449; ib., 453, affirmed.

ERROR to a judgment of the District Court of Appeal of California, which affirmed a conviction of the petitioner under the state act against criminal syndicalism. The Supreme Court of California denied a petition for appeal.

On the first hearing in this Court, the writ of error was

Page 359

dismissed for want of jurisdiction, but later a petition for rehearing was granted. 269 U.S. 530, 538.

SANFORD, J., lead opinion

MR. JUSTICE SANFORD delivered the opinion of the Court.

By a criminal information filed in the Superior Court of Alameda County, California, the plaintiff in error was charged, in five counts, with violations of the Criminal Syndicalism Act of that State. Statutes, 1919, c. 188, p. 281. She was tried, convicted on the first count, and sentenced to imprisonment. The judgment was affirmed by the District Court of Appeal. 57 Cal.App. 449. Her petition to have the case heard by the Supreme Court * was denied. Ib., 453. And the case was brought here on a writ of error which was allowed by the Presiding Justice of the Court of Appeal, the highest court of the State in which a decision could be had. Jud.Code, § 237.

On the first hearing in this Court, the writ of error was dismissed for want of jurisdiction. 269 U.S. 530. Thereafter, a petition for rehearing was granted, ib., 538, and the case was again heard and reargued both as to the jurisdiction and the merits.

The pertinent provisions of the Criminal Syndicalism Act are:

Section 1. The term "criminal syndicalism" as used in this act is hereby defined as any doctrine or precept advocating, teaching or aiding and abetting the commission

Page 360

of crime, sabotage (which word is hereby defined as meaning willful and malicious physical damage or injury to physical property), 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.

Sec. 2. Any person who: . . . 4. Organizes or assists in organizing, or is or knowingly becomes a member of, any organization, society, group or assemblage of persons organized or assembled to advocate, teach or aid and abet criminal syndicalism

Is guilty of a felony and punishable by imprisonment.

The first count of the information, on which the conviction was had charged that, on or about November 28, 1919, in Alameda County, the defendant, in violation of the Criminal Syndicalism Act,

did then and there unlawfully, willfully, wrongfully, deliberately and [47 S.Ct. 643] feloniously organize and assist in organizing, and was, is, and knowingly became a member of an organization, society, group and assemblage of persons organized and assembled to advocate, teach, aid and abet criminal syndicalism.

It has long been settled that this Court acquires no jurisdiction to review the judgment of a state court of last resort on a writ of error unless it affirmatively appears on the face of the record that a federal question constituting an appropriate ground for such review was presented in, and expressly or necessarily decided by, such state court. Crowell v. Randell, 10 Pet. 368, 392; Railroad Co. v. Rock, 4 Wall, 177, 180; California Powder Works v. Davis, 151 U.S. 389, 393; Cincinnati, etc. Railway v. Slade, 216 U.S. 78, 83; Hiawassee Power Co. v. Carolina-Tenn. Co., 252 U.S. 341, 343; New York v. Kleinert, 268 U.S. 646, 650.

Here, the record does not show that the defendant raised, or that the State courts considered or decided, any

Page 361

Federal question whatever, excepting as appears in an order made and entered by the Court of Appeal after it had decided the case and the writ of error had issued and been returned to this Court. A certified copy of that order, brought here as an addition to the record, shows that it was made and entered pursuant to a stipulation of the parties, approved by the court, and that it contains the following statement:

The question whether the California Criminal Syndicalism Act . . . and its application in this case are repugnant to the provisions of the Fourteenth Amendment to the Constitution of the United States providing that no state shall deprive any person of life, liberty, or property without due process of law, and that all persons shall be accorded the equal protection of the laws, was considered and passed upon by this Court.

In Cincinnati Packet Co. v. Bay, 200 U.S. 179, 182, where it appeared that a federal question had been presented in a petition in error to the State Supreme Court in a case in which the judgment was affirmed without opinion, it was held that the certificate of that court to the effect that it had considered and necessarily decided this question was sufficient to show its existence. And see Marvin v. Trout, 199 U.S. 212, 217, et seq.; Consolidated Turnpike v. Norfolk, etc. Railway, 228 U.S. 596, 599.

So -- while the unusual course here taken to show that federal questions were raised and decided below is not to be commended -- we shall give effect to the order of the Court of Appeal as would be done if the statement had been made in the opinion of that court when delivered. See Gross v. United States Mortgage Co., 108 U.S. 477, 484-486; Philadelphia Fire Association v. New York, 119 U.S. 110, 116; Home for Incurables v. City of New York, 187 U.S. 155, 157; Land & Water Co. v. San Jose Ranch Co., 189 U.S. 177, 179-180; Rector v. City Deposit Bank,

Page 362

200 U.S. 405, 412; Haire v. Rice, 204 U.S. 291, 299; Chambers v. Baltimore, etc. Railroad, 207 U.S. 142, 148; Atchison, etc. Railway v. Sowers, 213 U.S. 55, 62; Consolidated Turnpike Co. v. Norfolk, etc. Railway, 228 U.S. 596, 599; Miedrech v. Lauenstein, 232 U.S. 236, 242; North Carolina Railroad v. Zachary, 232 U.S. 248, 257; Chicago, etc. Railway v. Perry, 259 U.S. 548, 551.

And here, since it appears from the statement in the order of the Court of Appeal that the question whether...

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929 practice notes
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    • United States
    • Federal Cases United States District Courts 9th Circuit District of Idaho
    • 3 August 2015
    ...the uninformed, the enlightened; to the straightout lie, the simple truth." Alvarez, 132 S.Ct. at 2550 (citing Whitney v. California, 274 U.S. 357, 377, 47 S.Ct. 641, 71 L.Ed. 1095 (1927) (Brandeis, J., concurring)). " Society has the right and civic duty to engage in open, dynami......
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    • 21 September 1972
    ...constitutional in the light of all that had occurred since the Supreme Court had considered the statute in Whitney v. California, 274 U.S. 357, 47 S.Ct. 641, 71 L.Ed. 1095. It is not necessary to consider how far Younger v. Harris has changed the law as it may have stood immediately before ......
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    • Federal Cases United States District Courts 6th Circuit Eastern District of Michigan
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    ...if free speech is practiced. There must be reasonable ground to believe that the danger apprehended is imminent. Whitney v. California, 274 U.S. 357, 376, 47 S.Ct. 641, 648, 71 L.Ed. 1095 (1927) (Brandeis, J., concurring). A. Count I charges Baker and Gonda with transmitting a threat to inj......
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    • 7 December 1981
    ...education and punishment for violations of the law, not abridgement of the rights of free speech...." (Whitney v. California (1927) 274 U.S. 357, 378, 47 S.Ct. 641, 649, 71 L.Ed. 1095 (conc. opn. of Brandeis, J.), overruled by Brandenburg v. Ohio, supra, 395 U.S. 444, 89 S.Ct. 1827, 23......
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731 cases
  • 118 F.Supp.3d 1195 (D.Idaho 2015), 1:14-cv-00104-BLW, Animal Legal Def. Fund v. Otter
    • United States
    • Federal Cases United States District Courts 9th Circuit District of Idaho
    • 3 August 2015
    ...the uninformed, the enlightened; to the straightout lie, the simple truth." Alvarez, 132 S.Ct. at 2550 (citing Whitney v. California, 274 U.S. 357, 377, 47 S.Ct. 641, 71 L.Ed. 1095 (1927) (Brandeis, J., concurring)). " Society has the right and civic duty to engage in open, dynami......
  • 367 F.Supp. 136 (E.D.N.Y. 1972), 72 C 1030, Boraas v. Village of Belle Terre
    • United States
    • Federal Cases United States District Courts 2nd Circuit Eastern District of New York
    • 21 September 1972
    ...constitutional in the light of all that had occurred since the Supreme Court had considered the statute in Whitney v. California, 274 U.S. 357, 47 S.Ct. 641, 71 L.Ed. 1095. It is not necessary to consider how far Younger v. Harris has changed the law as it may have stood immediately before ......
  • 890 F.Supp. 1375 (E.D.Mich. 1995), Crim. 95-80106, United States v. Baker
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    • Federal Cases United States District Courts 6th Circuit Eastern District of Michigan
    • 21 June 1995
    ...if free speech is practiced. There must be reasonable ground to believe that the danger apprehended is imminent. Whitney v. California, 274 U.S. 357, 376, 47 S.Ct. 641, 648, 71 L.Ed. 1095 (1927) (Brandeis, J., concurring). A. Count I charges Baker and Gonda with transmitting a threat to inj......
  • 126 Cal.App.3d 488, 46981, Olivia N. v. National Broadcasting Co.
    • United States
    • California California Court of Appeals
    • 7 December 1981
    ...education and punishment for violations of the law, not abridgement of the rights of free speech...." (Whitney v. California (1927) 274 U.S. 357, 378, 47 S.Ct. 641, 649, 71 L.Ed. 1095 (conc. opn. of Brandeis, J.), overruled by Brandenburg v. Ohio, supra, 395 U.S. 444, 89 S.Ct. 1827, 23......
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    • JD Supra United States
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    ...3 Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180 (1997) .................................. 33, 34, 37 Whitney v. California, 274 U.S. 357 (1927) ............. 33 x Constitutional and Legislative Materials U.S. Const. amend. I. ........................................ passim 2 U.S.C. § 434 ........
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    ...themselves to think."). (19) Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting). (20) Whitney v. California, 274 U.S. 357, 377 (1927) (Brandeis, J., concurring); see also United States v. Alvarez, 132 S. Ct. 2537, 2550 (2012) (plurality opinion) ("The remed......
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