Brandeis free-speech dissent published online for 1st time

Friday, September 15, 2006

The First Amendment Center is pleased to be the first to post Justice Louis Brandeis’s remarkable dissent in Ruthenberg v. Michigan (circa 1927).

The issue in the case was whether Michigan’s criminal syndicalism law, which made it a crime to defend, advocate or establish an organization committed to violent means of effecting government change, violated the First Amendment. The Court, with Justice Edward T. Sanford for the majority and Brandeis in dissent, was prepared to rule that it did not.

A week or so before the Court handed down its judgment, however, defendant Charles Ruthenberg died. Hence, the opinions in the case were never handed down. Thereafter, the companion case, Whitney v. California (1927), became the lead case.

In a curious twist of events, portions of Brandeis’ Ruthenberg dissent became his famous Whitney concurrence.

The history of these matters is set out in Ronald Collins and David Skover’s article “Curious Concurrence: Justice Brandeis’s vote in Whitney v. California,” 2005 Supreme Court Review 333. Brandeis’s Ruthenberg dissent first appeared there as an appendix to that article.