Stromberg v. California

Respondent's Claim(s):

Holding(s) and Disposition:

Material Facts:

• It appears that the appellant, a young woman of nineteen, a citizen of the United States by birth, was one of the supervisors of a summer camp for children, between ten and fifteen years of age, in the foothills of the San Bernardino mountains.
• The charge against her concerned a daily ceremony at the camp in which the appellant supervised and directed the children in raising a red flag, "a camp-made reproduction of the flag of Soviet Russia, which was also the flag of the Communist Party in the United States."
• A full recounting of the facts is available below

Procedural History:

• ... charged that the appellant and other defendants, at the time and place set forth, "did willfully, unlawfully and feloniously display a red flag and banner in a public place and in a meeting place as a sign, symbol and emblem of opposition to organized government and as an invitation and stimulus to anarchistic action and as an aid to propaganda that is and was of a seditious character."
• On the argument of a general demurrer to the information, the appellant contended, as was permitted by the practice in California, that the statute was invalid because repugnant to the Fourteenth Amendment of the Federal Constitution.
• The demurrer was overruled, and the appellant pleaded not guilty. Conviction followed, ....
• The appellant was convicted in the Superior Court of San Bernardino County, California, for violation of § 403-a of the Penal Code of that State. That section provides: "Any person who displays a red flag, banner or badge or any flag, badge, banner, or device of any color or form whatever in any public place or in any meeting place or public assembly, or from or on any house, building or window as a sign, symbol or emblem of [1.] opposition to organized government or as an [2.] invitation or stimulus to anarchistic action or as an [3.] aid to propaganda that is of a seditious character is guilty of a felony." [emphasis added]
• ... motions for a new trial and in arrest of judgment were denied, and, on appeal to the District Court of Appeal, the judgment was affirmed.
• ... appellant continued her challenge of the constitutionality of the statute, and the court on appeal entertained her contention and decided the constitutional question against her.
• Petition for a hearing by the Supreme Court of California was denied, and an appeal has been taken to this Court.
• This Court granted an order permitting the appellant to prosecute the appeal in forma pauperis, and, for the purpose of shortening the record, a stipulation of facts has been presented on behalf of the appellant and the Attorney General of the State.

Rationale

Hughes Majority Opinion

• It has been determined that the conception of liberty under the due process clause of the Fourteenth Amendment embraces the right of free speech. Gitlow v. New York, 268 U. S. 652, 268 U. S. 666; Whitney v. California, 274 U. S. 357, 274 U. S. 362, 274 U. S. 371, 274 U. S. 373; Fiske v. Kansas, 274 U. S. 380, 274 U. S. 382. [emphasis added]
• The question is thus narrowed to that of the validity of the first clause, that is, with respect to the display of the flag "as a sign, symbol or emblem of opposition to organized government," ...
• A statute which, upon its face and as authoritatively construed, is so vague and indefinite as to permit the punishment of the fair use of this opportunity [for free political discussion] is repugnant to the guaranty of liberty contained in the Fourteenth Amendment.
• A full description of the rationale is available below

McReynolds Dissent (??)

• This Court often has announced, and scores, perhaps hundreds, of times has applied the rule, that it may not pass upon any question in a cause coming from a state court which the record fails to show was there determined or duly presented for determination.
• The only federal matter ruled upon by the court below (District Court of Appeals), and the only one there submitted, arose upon the general demurrer to the information.
• Did this adequately set forth an offense for which the defendant could be punished without violating the Fourteenth Amendment?
• The sole matter of a federal nature considered by the Court of Appeals was the claim that the provisions of § 403a of the Penal Code were in conflict with the Fourteenth Amendment.
• It held the statute divisible, and that, as petitioner stood charged with violating all of the inhibitions therein, some of which were certainly good, the conviction could not be upset even if one paragraph were invalid.
• The conclusion seems plainly right and, I think, the challenged judgment should be affirmed.

Butler Dissent (??)

• The Court holds the first clause invalid and, finding that the judgment may have rested upon that clause exclusively, sets aside the conviction.
• I am of opinion that the record affirmatively shows that appellant was not convicted for violation of the first clause.
• 1. Shortly prior to the trial of this case, the supreme court of California held invalid a city ordinance purporting to make unlawful the public display of a flag or emblem of an organization espousing for the government of the people of the United States principles antagonistic to our Constitution or form of government. In re Hartman, 182 Cal. 447; 188 Pac. 548.
• Under that decision, the California lower courts were bound to hold invalid the first clause of § 403a construed as peaceable opposition to organized government.
• The effect of the three instructions here referred to was definitely to direct the jury that defendant had the right, without limit, to advocate peaceable changes in our government, that, under our constitution and laws, an organization peaceably advocating changes in our government, no matter to what extent or upon what theories or principles, may adopt a flag signifying the purposes of such organization, and that it is impossible to make that unlawful.
• 2. The record fails to show that, ... defendant did in any manner separately challenge in the trial court the validity of the first clause.
• 3. And, if defendant at the trial did assail the first clause, that contention is shown by the opinion of the court below to have been definitely waived.
• 4. It seems to me that, on this record. the Court is not called on to decide whether the mere display of a flag as the emblem of a purpose, whatever its sort, is speech within the meaning of the constitutional protection of speech and press, or to decide whether such freedom is a part of the liberty protected by the Fourteenth Amendment, or whether the anarchy that is certain to follow a successful "opposition to organized government" is not a sufficient reason to hold that all activities to that end are outside the "liberty" so protected. Cf. Prudential Ins. Co. v. Cheek, 259 U. S. 530. Gitlow v. New York, 268 U. S. 652, 268 U. S. 666. Whitney v. California, 274 U. S. 357. Fiske v. Kansas, 274 U. S. 380.
• I am of opinion that the judgment below should be affirmed.

Full Recounting of Facts

• A list of the material facts is available above

Hughes Majority Full Argument

• As the trial court had treated the three purposes of the statute disjunctively, and the appellant had accepted that construction, we think that the only fair interpretation of her contention is that it related to the validity not merely of the statute taken as a whole, but of each one of the three clauses separately relied upon by the State in order to obtain a conviction.
• The first purpose described, that is, relating to the display of a flag or banner "as a sign, symbol or emblem of opposition to organized government," is discussed by the two concurring [Appeals Court] justices.
• All change is, to a certain extent, achieved by the opposition of the new to the old, and, insofar as it is within the law, such peaceful opposition is guaranteed to our people and is recognized as a symbol of independent thought containing the promise of progress. It may be permitted as a means of political evolution, but not of revolution. [emphasis added]
• With respect to the second purpose described in the statute, the display of a flag or banner "as an invitation or stimulus to anarchistic action," ... the term was regarded by the state court as referring to the overthrow by force and violence of the existing law and order, to the use of "unlawful, violent and felonious means to destroy property and human life." [emphasis added]
• The state court further gave its interpretation of the third clause of the statute, that is, in relation to the display of a flag or banner "as an aid to propaganda that is of a seditious character." "... Sedition is defined as the stirring up of disorder in the State, tending toward treason, but lacking an overt act. Certainly the 'advocacy of force or violence' in overturning the government of a State falls within that definition." [emphasis added]
• ... we do not find it necessary, for the purposes of the present case, to review the historic controversy with respect to "sedition laws," or to consider the question as to the validity of a statute dealing broadly and vaguely with what is termed seditious conduct, ....
• The basis of the decision, as more fully stated in the opinion of the two concurring justices, was this: "The constitutionality of the phrase of this section, 'of opposition to organized government' is questionable. This phrase can be eliminated from the section without materially changing its purposes. The section is complete without it, and, with it eliminated, it can be upheld as a constitutional enactment by the Legislature of the State of California."
• Accordingly, disregarding the first clause of the statute and upholding the other clauses, the conviction of the appellant was sustained.
• We are unable to agree with this disposition of the case.
• The verdict against the appellant was a general one. It did not specify the ground upon which it rested. As there were three purposes set forth in the statute, and the jury were instructed that their verdict might be given with respect to any one of them, independently considered, it is impossible to say under which clause of the statute the conviction was obtained.
• ... the necessary conclusion from the manner in which the case was sent to the jury is that, if any of the clauses in question is invalid under the Federal Constitution, the conviction cannot be upheld.
• We are thus brought to the question whether any one of the three clauses, as construed by the state court, is, upon its face, repugnant to the Federal Constitution, so that it could not constitute a lawful foundation for a criminal prosecution.
• It has been determined that the conception of liberty under the due process clause of the Fourteenth Amendment embraces the right of free speech. Gitlow v. New York, 268 U. S. 652, 268 U. S. 666; Whitney v. California, 274 U. S. 357, 274 U. S. 362, 274 U. S. 371, 274 U. S. 373; Fiske v. Kansas, 274 U. S. 380, 274 U. S. 382. [emphasis added]
• We have no reason to doubt the validity of the second and third clauses of the statute as construed by the state court to relate to such incitements to violence. [emphasis added]
• The question is thus narrowed to that of the validity of the first clause, that is, with respect to the display of the flag "as a sign, symbol or emblem of opposition to organized government," ...
• "It might also be construed to include peaceful and orderly opposition to government by legal means and within constitutional limitations."
• A statute which, upon its face and as authoritatively construed, is so vague and indefinite as to permit the punishment of the fair use of this opportunity [for free political discussion] is repugnant to the guaranty of liberty contained in the Fourteenth Amendment.
• The core of the rationale is available above