Protective Speech and the Whitney Case

The case of Whitney, a member of the Communist Labor Party who was convicted under a statute for her speech, prompted a media sensation and a call for a pardon. Despite the opportunity for the court to reconsider the clear and present danger test, the conviction was upheld based on the idea that her speech threatened public welfare. Justice Brandeis, in a separate opinion, emphasized that more speech is the answer to bad speech, forming the basis of modern First Amendment doctrine. However, Whitney's conviction was not overturned, highlighting the disconnect between the theory of protecting provocative speech and its application in this case.