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Detail, Louis D. Brandeis Papers, 1881-1966. Box 44, Folder 11, Seq. 367.

The Louis D. Brandeis Papers held by the Harvard Law School Library include seven folders of drafts written by Brandeis for Ruthenberg v. Michigan. The multiple drafts provide remarkable insight into the thought process and working style of the Justice.

Louis Dembitz Brandeis (1856-1941) is well known for his support of an individual’s right to privacy and free speech. His concurring opinion in Whitney v. California (1927) is considered by many to be one of the greatest defenses of freedom of speech ever written. What is less well known, however, is his dissenting opinion in Ruthenberg v. Michigan, a case that was dismissed when the petitioner, Charles Ruthenberg died. It was at that point that the companion case, Whitney v. California, became the focus and was tried before the United States Supreme Court. A review of Brandeis’ Ruthenberg dissent rewards the reader with a deeper knowledge of his thinking about these cases.


Justice Brandeis’s landmark opinion in Whitney v. California (1927) is a brilliant defense of political dissent. It has been celebrated as one of the most conceptually influential and rhetorically powerful justifications for First Amendment liberties. Little known, however, is the fact that its origins trace back to an unpublished dissent that Brandeis wrote for another case — Ruthenberg v. Michigan. There Brandeis first introduced the lofty free-speech principles that later found their way into his Whitney concurrence.

Charles Emil Ruthenberg (1882-1927), a Columbia Law School graduate, was a political firebrand who protested on street corners, supported labor strikes, organized anti-war demonstrations, recruited and trained radical workers, and involved himself in activist movements. In time, he became the National Executive Secretary of the Communist Party. He gained a reputation as the “most arrested Red in America,” with reportedly more than 60 indictments pending against him at one time.

“You Will Pay in Blood and Suffering” read the leaflet distributed by the socialists of Cleveland on April 1, 1917. It was one of many warnings delivered at a series of anti-war rallies organized by Ruthenberg to protest American’s impending entry into World War I. In that connection, a Cleveland federal grand jury later indicted him for obstructing the conscription act. The U.S. Supreme Court upheld that conviction in 1918 (245 U.S. 480). He served ten months and was released early on good behavior.

Among charges in other states, Ruthenberg was indicted under Michigan’s Criminal Syndicalism Law for participating at a secret gathering, known as the Bridgman Convention, arranged to unite the Communist Party of America with dissident factions. A jury found him guilty on May 2, 1923. His conviction was upheld by the Michigan Supreme Court in December of 1924 (229 Mich. 315).

Ruthenberg’s lawyers filed a writ of error in the U.S. Supreme Court challenging the Michigan law as unconstitutional on its face and as applied under the First and Fourteenth Amendments. They claimed that the act exceeded the state’s lawful police powers; violated the petitioner’s rights of assembly; and suffered from unconstitutional vagueness. The Court disagreed by a 7-2 vote.

Justice Brandeis, joined by Oliver Wendell Holmes, penned a lengthy dissent. Dated October 1, 1926, the draft opinion went to great lengths to defend Ruthenberg’s First Amendment rights. It was relentless in its demonstration that the Communist Party of America, as constituted in 1922, posed no “imminent danger that some evil might result from Ruthenberg’s assembly with [it].” In a detailed fashion, the Justice refuted the prosecution’s arguments one by one relating to sabotage, conspiracy, the use of force or illegal violence, the realistic threat of revolution, or the probability of any actual harms.

Before the Court rendered its ruling in Ruthenberg v. Michigan (No. 44), the petitioner died on March 2, 1927. Hence, the writ of error was dismissed. Thereafter, Whitney v. California, the companion case, stole the limelight. Though much of Brandeis’s Ruthenberg reasoning and rhetoric found its way into his concurrence in Whitney, it is ironic that the far more radical creed, conduct, and associations of Charles Ruthenberg won the Justice’s First Amendment sympathies, whereas the relatively benign behavior and associations of Anita Whitney did not.

Ronald Collins is the Harold S. Shefelman Scholar at the University of Washington Law School, and David Skover is the Fredric C. Tausend Professor at the Seattle University School of Law. Their article on the Ruthenberg case, “Curious Concurrence,” appeared in 2005 Supreme Court Review 333 (2005).

Image credit: Detail, Louis D. Brandeis Papers, 1881-1966. Box 44, Folder 11, Seq. 367. Harvard Law School Library. Harvard University, Cambridge, MA.