# Whitney v. California/Opinion of the Court

* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurring Opinion Brandeis
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 [p360] 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 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 [p361] 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, [p362] 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 the Syndicalism Act and its application in this case was repugnant to the due process and equal protection clauses of the Fourteenth Amendment was considered and passed upon by that court — this being a federal question constituting an appropriate ground for a review of the judgment — we conclude that this Court has acquired jurisdiction under the writ of error. The order dismissing the writ for want of jurisdiction will accordingly be set aside.
We proceed to the determination, upon the merits, of the constitutional question considered and passed upon by the Court of Appeal. Of course, our review is to be confined to that question, since it does not appear, either from the order of the Court of Appeal or from the record otherwise, that any other federal question was presented in and either expressly or necessarily decided by that court. National Bank v. Commonwealth, 9 Wall. 353, 363; Edwards v. Elliott, 21 Wall. 532, 557; Dewey v. Des Moines, 173 U.S. 193, 200; Keokuk & Hamilton Bridge Co. v. Illinois, 175 U.S. 626, 633; Capital City Dairy Co. v. Ohio, 183 U.S. 238, 248; Haire v. Rice, 204 U.S. 291, 301; Selover, Bates & Co. v. Walsh, 226 U.S. 112, 126. Missouri Pacific Railway v. Coal Co., 256 U.S. 134, 135. It is not enough that there may be somewhere hidden in the record a question which, if it had been raised, would have been of a federal nature. Dewey v. Des Moines, supra, 199; Keokuk & Hamilton Bridge Co. v. Illinois, supra, 634. And this necessarily excludes from our consideration [p363] a question sought to be raised for the first time by the assignments of error here — not presented in or passed upon by the Court of Appeal — whether apart from the constitutionality of the Syndicalism Act, the judgment of the Superior Court, by reason of the rulings of that court on questions of pleading, evidence and the like, operated as a denial to the defendant of due process of law. See Oxley Stave Co. v. Butler County, 166 U.S. 648, 660; Capital City Dairy Co. v. Ohio, supra, 248; Manhattan Life Ins. Co. v. Cohen, 234 U.S. 123, 134; Bass, etc. Ltd. v. Tax Commission, 266 U.S. 271, 283.
The following facts, among many others, were established on the trial by undisputed evidence: the defendant, a resident of Oakland, in Alameda County, California, had been a member of the Local Oakland branch of the Socialist Party. This Local sent delegates to the national convention of the Socialist Party held in Chicago in 1919, which resulted in a split between the "radical" group and the old-wing Socialists. The "radicals" — to whom the Oakland delegates adhered — being ejected, went to another hall, and formed the Communist Labor Party of America. Its Constitution provided for the membership of persons subscribing to the principles of the Party and pledging themselves to be guided by its Platform, and for the formation of state organizations conforming to its Platform as the supreme declaration of the Party. In its "Platform and Program," the Party declared that it was in full harmony with "the revolutionary working class parties of all countries," and adhered to the principles of Communism laid down in the Manifesto of the Third International at Moscow, and that its purpose was "to create a unified revolutionary working class movement in America," organizing the workers as a class in a revolutionary class struggle to conquer the capitalist state for the overthrow of capitalist rule, the conquest of political power and the establishment [p364] of a working class government, the Dictatorship of the Proletariat, in place of the state machinery of the capitalists, which should make and enforce the laws, reorganize society on the basis of Communism, and bring about the Communist Commonwealth — advocated, as the most important means of capturing state power, the action of the masses, proceeding from the shops and factories, the use of the political machinery of the capitalist state being only secondary; the organization of the workers into "revolutionary industrial unions"; propaganda pointing out their revolutionary nature and possibilities, and great industrial battles showing the value of the strike as a political weapon — commended the propaganda and example of the Industrial Workers of the World and their struggles and sacrifices in the class war — pledged support and cooperation to "the revolutionary industrial proletariat of America" in their struggles against the capitalist class — cited the Seattle and Winnipeg strikes and the numerous strikes all over the country "proceeding without the authority of the old reactionary Trade Union officials," as manifestations of the new tendency — and recommended that strikes of national importance be supported and given a political character, and that propagandists and organizers be mobilized "who cannot only teach, but actually help to put in practice the principles of revolutionary industrial unionism and Communism."
Shortly thereafter, the Local Oakland withdrew from the Socialist Party and sent accredited delegates, including the defendant, to a convention held in Oakland in November, 1919, for the purpose of organizing a California branch of the Communist Labor Party. The defendant, after taking out a temporary membership in the Communist Labor Party, attended this convention as a delegate and took an active part in its proceedings. She was elected a member of the Credentials Committee, and, as its chairman, made a report to the convention upon [p365] which the delegates were seated. She was also appointed a member of the Resolutions Committee, and, as such, signed the following resolution in reference to political action, among others proposed by the Committee:
    The C.L.P. of California fully recognizes the value of political action as a means of spreading communist propaganda; it insists that, in proportion to the development of the economic strength of the working class, it, the working class, must also develop its political power. The C.L.P. of California proclaims and insists that the capture of political power, locally or nationally by the revolutionary working class, can be of tremendous assistance to the workers in their struggle of emancipation. Therefore, we again urge the workers who are possessed of the right of franchise to cast their votes for the party which represents their immediate and final interest — the C.L.P. — at all elections, being fully convinced of the utter futility of obtaining any real measure of justice or freedom under officials elected by parties owned and controlled by the capitalist class.
The minutes show that this resolution, with the others proposed by the committee, was read by its chairman to the convention before the Committee on the Constitution had submitted its report. According to the recollection of the defendant, however, she herself read this resolution. Thereafter, before the report of the Committee on the Constitution had been acted upon, the defendant was elected an alternate member of the State Executive Committee. The Constitution, as finally read, was then adopted. This provided that the organization should be named the Communist Labor Party of California; that it should be "affiliated with" the Communist Labor Party of America, and subscribe to its Program, Platform and Constitution, and, "through this affiliation," be "joined with the Communist International of Moscow;" and that the qualifications for membership should be those prescribed in the [p366] National Constitution. The proposed resolutions were later taken, up and all adopted except that on political action, which caused a lengthy debate, resulting in its defeat and the acceptance of the National Program in its place. After this action, the defendant, without, so far as appears, making any protest, remained in the convention until it adjourned. She later attended as an alternate member one or two meetings of the State Executive Committee in San Jose and San Francisco, and stated, on the trial, that she was then a member of the Communist Labor Party. She also testified that it was not her intention that the Communist Labor Party of California should be an instrument of terrorism or violence, and that it was not her purpose or that of the Convention to violate any known law.
In the light of this preliminary statement, we now take up, insofar as they require specific consideration, the various grounds upon which it is here contended that the Syndicalism Act and its application in this case is repugnant to the due process and equal protection clauses of the Fourteenth Amendment.
1. While it is not denied that the evidence warranted the jury in finding that the defendant became a member of and assisted in organizing the Communist Labor Party of California, and that this was organized to advocate, teach, aid or abet criminal syndicalism as defined by the Act, it is urged that the Act, as here construed and applied, deprived the defendant of her liberty without due process of law in that it has made her action in attending the Oakland convention unlawful by reason of "a subsequent event brought about against her will by the agency of others," with no showing of a specific intent on her part to join in the forbidden purpose of the association, and merely because, by reason of a lack of "prophetic" understanding, she failed to foresee the quality that others would give to the convention. The argument is, [p367] in effect, that the character of the state organization could not be forecast when she attended the convention; that she had no purpose of helping to create an instrument of terrorism and violence; that she
    took part in formulating and presenting to the convention a resolution which, if adopted, would have committed the new organization to a legitimate policy of political reform by the use of the ballot;
that it was not until after the majority of the convention turned out to be "contrary-minded, and other less temperate policies prevailed," that the convention could have taken on the character of criminal syndicalism, and that, as this was done over her protest, her mere presence in the convention, however violent the opinions expressed therein, could not thereby become a crime. This contention, while advanced in the form of a constitutional objection to the Act, is in effect nothing more than an effort to review the weight of the evidence for the purpose of showing that the defendant did not join and assist in organizing the Communist Labor Party of California with a knowledge of its unlawful character and purpose. This question, which is foreclosed by the verdict of the jury — sustained by the Court of Appeal over the specific objection that it was not supported by the evidence — is one of fact merely, which is not open to review in this Court, involving, as it does, no constitutional question whatever. And we may add that the argument entirely disregards the facts: that the defendant had previously taken out a membership card in the National Party, that the resolution which she supported did not advocate the use of the ballot to the exclusion of violent and unlawful means of bringing about the desired changes in industrial and political conditions, and that, after the constitution of the California Party had been adopted, and this resolution had been voted down and the National Program accepted, she not only remained in the convention, without [p368] protest, until its close, but subsequently manifested her acquiescence by attending as an alternate member of the State Executive Committee and continuing as member of the Communist Labor Party.
2. It is clear that the Syndicalism Act is not repugnant to the due process clause by reason of vagueness and uncertainty of definition. It has no substantial resemblance to the statutes held void for uncertainty under the Fourteenth and Fifth Amendments in International Harvester Co. v. Kentucky, 234 U.S. 216, 221, and United States v. Cohen Grocery, 255 U.S. 81, 89, because not fixing an ascertainable standard of guilt. The language of § 2, subd. 4, of the Act, under which the plaintiff in error was convicted, is clear, the definition of "criminal syndicalism "specific.
The Act, plainly, meets the essential requirement of due process that a penal statute be "sufficiently explicit to inform those who are subject to it, what conduct on their part will render them liable to its penalties," and be couched in terms that are not "so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application." Connally v. General Construction Co., 269 U.S. 385, 391. And see United States v. Brewer, 139 U.S. 278, 288; Chicago, etc., Railway v. Dey, (C.C.) 35 Fed. 866, 876; Tozer v. United States, (C.C.) 52 Fed. 917, 919. In Omaechevarria v. Idaho, 246 U.S. 343, 348, in which it was held that a criminal statute prohibiting the grazing of sheep on any "range" previously occupied by cattle "in the usual and customary use" thereof, was not void for indefiniteness because it failed to provide for the ascertainment of the boundaries of a "range" or to determine the length of time necessary to constitute a prior occupation a "usual" one, this Court said:
    Men familiar with range conditions and desirous of observing the law will have little difficulty [p369] in determining what is prohibited by it. Similar expressions are common in the criminal statutes of other States. This statute presents no greater uncertainty or difficulty, in application to necessarily varying facts, than has been repeatedly sanctioned by this court. Nash v. United States, 229 U.S. 373, 377; Miller v. Strahl, 239 U.S. 426, 434.
So, as applied here, the Syndicalism Act required of the defendant no "prophetic" understanding of its meaning.
And similar Criminal Syndicalism statutes of other States, some less specific in their definitions, have been held by the State courts not to be void for indefiniteness. State v. Hennessy, 114 Wash. 351, 364; State v. Laundy, 103 Ore. 443, 460; People v. Ruthenberg, 229 Mich. 31, 325. And see Fox v. Washington, 236 U.S. 273, 277; People v. Steelik, 187 Cal. 361, 372; People v. Lloyd, 304 Ill. 23, 34.
3. Neither is the Syndicalism Act repugnant to the equal protection clause on the ground that, as its penalties are confined to those who advocate a resort to violent and unlawful methods as a means of changing industrial and political conditions, it arbitrarily discriminates between such persons and those who may advocate a resort to these methods as a means of maintaining such conditions.
It is, settled by repeated decisions of this Court that the equal protection clause does not take from a State the power to classify in the adoption of police laws, but admits of the exercise of a wide scope of discretion, and avoids what is done only when it is without any reasonable basis, and therefore is purely arbitrary, and that one who assails the classification must carry the burden of showing that it does not rest upon any reasonable basic, but is essentially arbitrary. Lindsley v. National Cabonic Gas Co., 220 U.S. 61, 78, and case cited. [p370]
A statute does not violate the equal protection clause merely because it is not all-embracing; Zucht v. King, 260 U.S. 174, 177; James-Dickinson Farm Mortgage Co. v. Harry, 273 U.S. 119. A State may properly direct its legislation against what it deems an existing evil without covering the whole field of possible abuses. Patsone v. Pennsylvania, 232 U.S. 138, 144; Farmers Bank v. Federal Reserve Bank, 262 U.S. 649, 661; James-Dickinson Mortgage Co. v. Harry, supra. The statute must be presumed to be aimed at an evil where experience shows it to be most felt, and to be deemed by the legislature coextensive with the practical need, and is not to be overthrown merely because other instances may be suggested to which also it might have been applied, that being a matter for the legislature to determine unless the case is very clear. Keokee Coke Co. v Taylor, 234 U.S. 224, 227. And it is not open to objection unless the classification 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. Stebbins v. Riley, 268 U.S. 137, 143; Graves v. Minnesota, 272 U.S. 425; Swiss Oil Corporation v. Shanks, 273 U.S. 407.
The Syndicalism 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. See State v. Hennessy, supra, 361; State v. Laundy, supra, 460. And there is no substantial basis for the contention that the legislature has arbitrarily or unreasonably limited its application to those advocating the use of violent and unlawful methods to effect changes in industrial and political conditions, there being nothing indicating any ground to apprehend that those desiring to maintain existing industrial and political conditions did or would advocate such methods. That there is a widespread conviction of the necessity for legislation of [p371] this character is indicated by the adoption of similar statutes in several other States.
4. Nor is the Syndicalism Act, as applied in this case, repugnant to the due process clause as a restraint of the rights of free speech, assembly, and association.
That the freedom of speech which is secured by the Constitution does not confer an absolute right to speak, without responsibility, whatever one may choose, or an unrestricted and unbridled license giving immunity for every possible use of language and preventing the punishment of those who abuse this freedom, and that a State in the exercise of its police power may punish those who abuse this freedom by utterances inimical to the public welfare, tending to incite to crime, disturb the public peace, or endanger the foundations of organized government and threaten its overthrow by unlawful means, is not open to question. Gitlow v. New York, 268 U.S. 652, 666-668, and cases cited.
By enacting the provisions of the Syndicalism Act, the State has declared, through its legislative body, that to knowingly be or become a member of or assist in organizing an association to advocate, teach or aid and abet the commission of crimes or unlawful acts of force, violence or terrorism as a means of accomplishing industrial or political changes involves such danger to the public peace and the security of the State, that these acts should be penalized in the exercise of its police power. That determination must be given great weight. Every presumption is to be indulged in favor of the validity of the statute, Mugler v. Kansas, 123 U.S. 623, 661, and it may not be declared unconstitutional unless it is an arbitrary or unreasonable attempt to exercise the authority vested in the State in the public interest. Great Northern Railway v. Clara City, 246 U.S. 434, 439.
The essence of the offense denounced by the Act is the combining with others in an association for the accomplishment [p372] of the desired ends through the advocacy and use of criminal and unlawful methods. It partakes of the nature of a criminal conspiracy. See People v. Steelik, supra, 376. That such united and joint action involves even greater danger to the public peace and security than the isolated utterances and acts of individuals is clear. We cannot hold that, as here applied, the Act is an unreasonable or arbitrary exercise of the police power of the State, unwarrantably infringing any right of free speech, assembly or association, or that those persons are protected from punishment by the due process clause who abuse such rights by joining and furthering an organization thus menacing the peace and welfare of the State.
We find no repugnancy in the Syndicalism Act as applied in this case to either the due process or equal protection clauses of the Fourteenth Amendment on any of the grounds upon which its validity has been here challenged.
The order dismissing the writ of error will be vacated and set aside, and the judgment of the Court of Appeal Affirmed.

## Note

* ↑ 1 Statutes, 1919, c. 58, p. 88.