274 U.S. 357 (1927)
In 1919, a criminal information was filed in the Superior Court of Alameda County, California, charging Anita Whitney with five counts of violating the state's Criminal Syndicalism Act, Statutes 1919, chapter 188, page 281.1 She was tried and convicted on the first count, which alleged that on or about November 28, 1919, she unlawfully organized and assisted in organizing and knowingly became a member of an organization assembled to advocate criminal syndicalism.2 The judgment was affirmed by the District Court of Appeal in People v. Whitney, 57 Cal. App. 449, and her petition for hearing by the California Supreme Court was denied.3 The case reached the United States Supreme Court on a writ of error allowed by the Presiding Justice of the Court of Appeal.4
On the first hearing, the writ was dismissed for want of jurisdiction.5 A petition for rehearing was granted, and the case was reargued on both jurisdiction and the merits.6 An order entered by the Court of Appeal pursuant to stipulation stated that the question whether the Act and its application violated the due process and equal protection clauses of the Fourteenth Amendment had been considered and passed upon.7
At trial, undisputed evidence showed that Whitney, a resident of Oakland in Alameda County, had been a member of the Local Oakland branch of the Socialist Party.8 Delegates from that local attended the national convention of the Socialist Party in Chicago in 1919, where a split occurred between the radical group and the old-wing Socialists.9 The radicals to whom the Oakland delegates adhered being ejected went to another hall and formed the Communist Labor Party of America.10 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 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.11
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.12 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.13 She was elected a member of the Credentials Committee, and, as its chairman, made a report to the convention upon which the delegates were seated.14 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.15 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.16 After this action, the defendant, without, so far as appears, making any protest, remained in the convention until it adjourned.17 She later attended as an alternate member one or two meetings of the State Executive Committee in San José and San Francisco, and stated, on the trial, that she was then a member of the Communist Labor Party.18 She also testified that it was not her intention that the Communist Labor Party of California should be an instrument of terrorism or violence.19 She also testified that it was not her purpose or that of the Convention to violate any known law.20
Whether the record affirmatively shows that a federal question was presented in and decided by the state court so as to confer jurisdiction on this Court under the writ of error?21
This Court acquires no jurisdiction to review the judgment of a state court of last resort on a writ of error.22 It acquires no jurisdiction 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.23
Yes. The certified copy of the order entered by the Court of Appeal pursuant to stipulation of the parties states that the question whether the California Criminal Syndicalism Act and its application in this case is repugnant to the due process and equal protection clauses of the Fourteenth Amendment was considered and passed upon by that court.24 This statement suffices to establish that the federal question was raised and decided below.25 The Court gives effect to the order in the same manner as if the statement had appeared in the opinion when delivered.26
The Court has jurisdiction under the writ of error.27
Whether the California Criminal Syndicalism Act as construed and applied in this case deprived the defendant of her liberty without due process of law?28
A penal statute satisfies due process when it is sufficiently explicit to inform those subject to it what conduct will render them liable to penalties.29 It is not so vague that persons of common intelligence must necessarily guess at its meaning.30 The Syndicalism Act meets this standard through its clear definition of criminal syndicalism and the specific prohibition in section 2 subdivision 4 against organizing or knowingly becoming a member of an organization assembled to advocate it.31
No. Undisputed trial evidence established that Whitney took out temporary membership in the Communist Labor Party.32 She attended the Oakland convention as a delegate.33 She served on the Credentials and Resolutions Committees.34 She remained in the convention after the political action resolution was defeated and the National Program accepted.35
She later attended meetings of the State Executive Committee and continued as a member of the party.36 The jury verdict, sustained on appeal, found that she organized and assisted in organizing and knowingly became a member of an organization assembled to advocate criminal syndicalism.37 The Act supplies an ascertainable standard without requiring prophetic understanding.38
The Act as construed and applied did not deprive Whitney of her liberty without due process of law.39
Whether the Act violates the equal protection clause of the Fourteenth Amendment by arbitrarily discriminating between persons who advocate violent methods to change industrial and political conditions and those who advocate such methods to maintain them?40
The equal protection clause permits a state wide discretion to classify in the adoption of police laws and avoids only classifications that lack any reasonable basis and are therefore purely arbitrary.41 A statute need not be all-embracing and may direct its penalties against an existing evil where experience shows it to be most felt.
No. The Syndicalism Act applies alike to all persons regardless of business associations or callings who advocate the use of violent and unlawful methods to effect changes in industrial and political conditions.42 Nothing in the record indicates any ground to apprehend that those desiring to maintain existing conditions did or would advocate such methods.43 The classification therefore rests upon a reasonable basis that the legislature could adopt in the exercise of its judgment.44
The Act does not violate the equal protection clause of the Fourteenth Amendment.45
Whether the Act as applied in this case is repugnant to the due process clause of the Fourteenth Amendment as an unreasonable restraint on the rights of free speech, assembly, and association?46
The freedom of speech secured by the Constitution does not confer an absolute right to speak without responsibility or an unrestricted license.47 A state in the exercise of its police power may punish those who abuse the freedom by joining and furthering an organization that advocates criminal syndicalism as a means of accomplishing industrial or political changes.48 Such united action involves greater danger to public peace and security than isolated utterances.49
No. The essence of the offense is the combining with others in an association for the accomplishment of desired ends through advocacy and use of criminal and unlawful methods.50 It partakes of the nature of a criminal conspiracy.51 The legislative determination that knowing membership in or assistance to such an organization involves danger to public peace and state security must be given great weight.52 The Act as applied to Whitney's active participation in organizing and maintaining the California branch is not an arbitrary or unreasonable exercise of the police power.53
The Act as applied in this case is not repugnant to the due process clause of the Fourteenth Amendment as an unreasonable restraint on the rights of free speech, assembly, and association.54
Related opinions on this issue
Joined by Justice Holmes
Justice Brandeis, joined by Justice Holmes, concurred in the judgment of affirmance.55 He stressed that the rights of free speech and assembly are fundamental.56 They may be restricted only when speech would produce or is intended to produce a clear and imminent danger of some substantive evil that the state may constitutionally prevent.57 The legislative declaration of emergency creates merely a rebuttable presumption.58
It remains open to a defendant to show that no such clear and present danger existed at the time.59 Although evidence in the record could have supported a finding of danger arising from a conspiracy by members of the Industrial Workers of the World, Whitney did not claim below that the statute was void for lack of clear and present danger.60 Nor did she request that the issue be submitted to court or jury.61 Therefore the judgment could not be disturbed on that ground.62