Stromberg v. California (1931)

Summary

Stromberg v. California involved a California law banning anyone from displaying “a red flag” in “any public place” as “a sign, symbol or emblem of opposition to organized government.”  In a 7-to-2 decision, the Supreme Court overturned a conviction under this law on First Amendment grounds.  This was the first time that the Supreme Court had ever used the First Amendment to move beyond protections against prior restraint and, instead, attacked subsequent punishment in the name of the freedom of speech.  In his majority opinion, Chief Justice Hughes advanced a powerful First Amendment vision.  For Hughes, the First Amendment must protect speech that allows the American people to govern themselves.

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Excerpt: Majority Opinion, Chief Justice Charles Evans Hughes

[T]he 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. Appellant led the children in their daily study, teaching them history and economics. “Among other things, the children were taught class consciousness, the solidarity of the workers, and the theory that the workers of the world are of one blood, and brothers all.”
Appellant was a member of the Young Communist League, an international organization affiliated with the Communist Party. 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.” In connection with the flag-raising, there was a ritual at which the children stood at salute and recited a pledge of allegiance “to the worker’s red flag, and to the cause for which it stands; one aim throughout our lives, freedom for the working class.” . . . The charge in the information, as to the purposes for which the flag was raised, was laid conjunctively, uniting the three purposes which the [California] statute condemned. But, in the instructions to the jury, the trial court followed the express terms of the statute and treated the described purposes disjunctively, holding that the appellant should be convicted if the flag was displayed for any one of the three purposes named. The instruction was as follows:

“In this connection, you are instructed that, if the jury should believe beyond a reasonable doubt that the defendants, or either of them, displayed, or caused to be displayed, 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, as charged in count one of the information, and if you further believe from the evidence beyond a reasonable doubt that said flag, badge, banner, or device was displayed, or caused to be displayed, as a sign, symbol, or emblem of opposition to organized government, or was an invitation or stimulus to anarchistic action, or was in aid to propaganda that is of a seditious character, you will find such defendants guilty as charged in count one of the information.” . . .

The principles to be applied have been clearly set forth in our former decisions. It has been determined that the conception of liberty under the due process clause of the Fourteenth Amendment embraces the right of free speech. . . . The right is not an absolute one, and the State, in the exercise of its police power, may punish the abuse of this freedom. There is no question but that the State may thus provide for the punishment of those who indulge in utterances which incite to violence and crime and threaten the overthrow of organized government by unlawful means. There is no constitutional immunity for such conduct abhorrent to our institutions. . . . 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.

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,” and the construction which the state court has placed upon this clause removes every element of doubt. The state court recognized the indefiniteness and ambiguity of the clause. The court considered that it might be construed as embracing conduct which the State could not constitutionally prohibit. Thus, it was said that the clause “might be construed to include the peaceful and orderly opposition to a government as organized and controlled by one political party by those of another political party equally high minded and patriotic which did not agree with the one in power. It might also be construed to include peaceful and orderly opposition to government by legal means and within constitutional limitations.”

The maintenance of the opportunity for free political discussion to the end that government may be responsive to the will of the people and that changes may be obtained by lawful means, an opportunity essential to the security of the Republic, is a fundamental principle of our constitutional system. 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 is repugnant to the guaranty of liberty contained in the Fourteenth Amendment. The first clause of the statute being invalid upon its face, the conviction of the appellant, which, so far as the record discloses, may have rested upon that clause exclusively, must be set aside.
 

Excerpt: Dissent, Justice Pierce Butler

The Court decides that, insofar as § 403a declares it a crime to display a flag for the first purpose specified, “as an emblem of opposition to organized government,” the section denies the right of free speech, and the court holds that right to be included in the concept of “liberty” safeguarded against state action by the due process clause of the Fourteenth Amendment. It sustains the parts forbidding the public display of a flag “as an invitation or stimulus to anarchistic action or as an aid to propaganda that is of a seditious character.” The count on which the conviction rests charges that the appellant displayed a flag in ways and for all the purposes denounced by the section. Assuming all the clauses of the section to be valid, the display of a flag for the purpose specified in any one of them would be sufficient to warrant conviction. The Court holds the first clause invalid and, finding that the judgment may have rested upon that clause exclusively, sets aside the conviction. . . . 

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.

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