When
World War I broke out in
Europe, Whitney, who was a
pacifist, became a member of the anti-war
Socialist Party of America, joining the party meetings of the
Oakland branch. When the more radical members of the Socialist Party bolted the
1919 Emergency National Convention of the Socialist Party in
Chicago and elected to create an American Communist party, Whitney, who considered the Socialist Party too moderate, threw herself into the Communists' cause and drummed up support for the new Communist Labor Party throughout California. Following a speech at the Hotel Oakland to the Oakland Civic Club on behalf of the CLP, Whitney was arrested on November 28, 1919, and was charged with "criminal syndicalism" in violation of the
California Criminal Syndicalism Act. A pre-trial hearing was held in the case on January 6, 1920, less than a week after the
U.S. Department of Justice's mass crackdown on alien radicals known as the "
Palmer Raids", and the case went to trial in Oakland on January 27, in the
Alameda County Superior Court. Whitney was charged with five counts of having violated the state's Criminal Syndicalism law by her membership in the Communist Labor Party. Since Whitney freely admitted her status as a charter member of the CLP, the burden of the prosecution was in attempting to demonstrate the association of the organization with the
syndicalist Industrial Workers of the World and the
Communist International, based in
Moscow, organizations held to be illegal under California law. Once having established the criminal nature of the CLP, prosecutors argued that they would then establish the guilt of the defendant. Whitney's defense attorney, Thomas H. O'Connor, was unable to obtain a
continuance in the case on the grounds that his daughter had fallen ill with
influenza in the ongoing
1918 flu pandemic. O'Connor was himself stricken on the second day of the trial and was unable to continue the trial after the third. He would die of the illness a little over a week later, as did a woman on the original jury. Citing reasons of expense, Judge James G. Quinn swore in an alternate juror and demanded for Whitney's assistant counsel, J.E. Pemberton, to proceed with the case. The defense called only single witness, Whitney herself. It also recalled one individual who had been forced to the stand by the prosecution, San Francisco communist leader
Max Bedacht. The prosecution, on the other hand, argued at length that the Communist Labor Party was nothing more than "a political adjunct of the IWW" and called upon the jury "to uphold the sacred tenets of
Americanism and to place, with its verdict, the seal of disapproval on the activities of the Communist Labor Party and its blood brother, the IWW." The first appeal was filed on February 28 in the District Court of Appeal in the First Appellate District, San Francisco, citing 16 grounds for appeal and points of error. On June 5, 1922, a petition for a rehearing of the evidence in the case was made before the
California Supreme Court. The petition was denied, with two justices dissenting. On October 19, the appeal was summarily dismissed, on technical grounds. The appeals process was still not at an end, however. In December 1925, Whitney's legal team succeeded in overcoming the jurisdictional technicalities that had sabotaged its previous effort, and it won a petition for a rehearing before the U.S. Supreme Court. The case was argued again on March 15, 1926. Some 14 months later, on May 16, 1927, Whitney's conviction was unanimously upheld by the Supreme Court in
Whitney v. California. The ruling featured a landmark concurring opinion by Justice
Louis Brandeis that only a "clear and present danger" would be sufficient for the legislative restriction of the right of free speech. His opinion would be employed again in cases revoking restrictions against Communists after a subsequent wave of imprisonments during the 1950s. ==Post-trial activity==