In the Foreword to Peter Irons’s (1999) A People’s History of the Supreme Court, Howard Zinn lamented the fact that “[a]lthough the Preamble to the United States Constitution begins with the words ‘We the People … ,’ the volumes upon volumes that deal with constitutional law are remarkably devoid of human beings” (p. v). Recent years have seen great advancements in the telling of the stories of constitutional law cases, and much of the credit for that positive development must go to the University Press of Kansas and its Landmark Law Cases & American Society books. Philippa Strum’s latest contribution to that series, Speaking Freely, finally puts a much-needed group of human faces to the stories behind this momentous 1927 expressive-freedom Supreme Court decision.

Just as, for example, the Court’s 1937 minimum wage decision in West Coast Hotel v. Parrish is better known for its temporal relationship to Franklin D. Roosevelt and his Court-packing plan than for the travails of the plaintiff Elsie Parrish and her former employer, the Cascadian Hotel, the name traditionally associated with Whitney is that of Justice Louis D. Brandeis, rather than that of Charlotte Anita Whitney. “We may think of law as a matter of courts and judges and doctrines,” and certainly in this book Brandeis’s central role in Whitney and its jurisprudential legacy is given extensive treatment; however, law “begins as the story of human beings and their attempts to make sense of and organize their world” (p. 2). In this excellent book, Strum has told that story—of Whitney, her lawyers, her sympathizers and opponents, and the myriad intellectual forces that helped to shape free-speech law during this period in American history—helping us to make greater sense of both that world and the world we live in today.

If you advocate the need to bring change to the current governmental system and, heaven forbid, people listen to you and subsequently disturb the peace, that system will charge you with violating its criminal syndicalism laws. Today, most Americans believe that such government actions are inconceivable, wholly unwarranted, and blatant violations of the First Amendment to the U.S. Constitution. And since 1969, when the U.S. Supreme Court overturned the decision in Whitney, the judicial system has agreed. As Strum shows in her first two chapters, however, very different attitudes about expressive-freedom rights prevailed in the first two decades of the twentieth century, across both California and the entire nation, when the radical aristocratic Whitney publicly supported socialism, thereby testing the boundaries of societal support for direct political action and freedom of speech.

Sandwiched in between Strum’s Chapter 2 discussions of the legislative and judicial decisions that suppressed expressive freedom during this period of time is a short paragraph that will either confuse or whet the appetite of readers, depending upon their level of knowledge about the outcome of the Whitney case. The paragraph introduces us to “Boston attorney Louis Dembitz Brandeis,” who viewed the “reason for all the [sociopolitical] unrest” sweeping the nation in 1919, and into the 1920s, as stemming from “[t]he refusal of the giant companies spawned by the industrial revolution to recognize the legitimate demands of workers” (p. 27). That those new to the Whitney story might need to be reminded of this introduction once they get further into the book is, in the opinion of this reviewer, one of the tremendous strengths of this bridging paragraph.

Anita Whitney, born into privilege and with a prestigious family pedigree, was not a bomb-throwing, downtrodden, low-life member of the working class; in short, she was not the kind of person that one might initially believe to have been the un-American, law-breaking socialist that she was portrayed to be. It is only from Strum’s book, however, that we get an accurate picture of the real Anita Whitney, someone to whose life standard scholarly discussions of the case usually devote nothing more than a few brief sentences.

In Chapters 3 and 4, Strum’s richly detailed portrait of Whitney is nicely complemented by a very accessible analysis of the different lower court proceedings in the case. It is here that the human face of this legal drama really begins to take shape. For example, we hear how Whitney’s lawyer was denied his request for a trial continuance, a request he submitted because of his desire to be home taking care of his 12-year-old daughter, a seriously ill victim of the influenza epidemic. We then later learn of that lawyer’s death midway through the legal proceedings. As Strum notes, an important sidebar is the fact that numerous people involved in the case (at various levels) openly speculated that Whitney’s legal fate might have been quite different had this lawyerly tragedy not struck.

It is because Strum does such a beautiful job of telling the stories of the different people and institutions that gave us the Whitney case that I find it necessary to criticize her for devoting a mere two paragraphs to Supreme Court Justice Edward T. Sanford, and the majority opinion that he authored in Whitney. The decision’s legacy, of course, has not been defined by either the Court’s decision or Sanford’s opinion. Instead, it is famous for the robust and eloquent defense of dissenting views in a democracy that Justice Brandeis wrote into his concurring opinion—what Anthony Lewis (1991) justifiably described as “the most profound statement ever made about the premises of the First Amendment in protecting the freedom of speech” (in Make No Law: The Sullivan Case and the First Amendment, p. 85). I have no doubt that the students in my First Amendment course would find Strum’s book to be an engaging read. However, I am also concerned that they may fail to grasp the important fact that Brandeis ultimately agreed with the majority’s decision to uphold Whitney’s conviction. To be sure, in Chapter 6, Strum offers an excellent analysis of his concurrence and a concise and convincing explanation of his vote, linking it to a major theme in Brandeis’s overall jurisprudence. Additionally, in Chapter 7, she nicely explores the influence and legacy of the concurrence. However, I can imagine that some readers might reach a point in the book where they find themselves surprised to find that the heroic Brandeis did not author the majority opinion. Time may have lauded Brandeis’s words and obscured Sanford’s, but in a story about the case writ large, the latter’s arguments and thoughts about the case merited more attention.

This is not, however, a criticism that should dissuade people from reading this book and/or assigning it in their classes, because the story that Strum tells is of timeless value. On the one hand, it is indeed true that “[a]nyone reading about people tried for exercising their speech rights might wonder, from the vantage point of the twenty-first century, why judges allowed any of those people to go to prison” (p. 34). On the other hand, from that very same vantage point it is surprisingly easy to identify contemporary examples of civil unrest, sociopolitical dissent, and even violent dissatisfaction with governmental actions and/or policies that generate concerns strikingly similar to those that triggered the passage of criminal syndicalism laws in a previous age. In conclusion, Speaking Freely is a superb place at which to begin to understand an aspect of America’s past in the hopes that we might better understand aspects of America’s future.