283 U.S. 359 (1931), 584, Stromberg v. California

Docket NºNo. 584
Citation283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117
Party NameStromberg v. California
Case DateMay 18, 1931
CourtUnited States Supreme Court

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283 U.S. 359 (1931)

51 S.Ct. 532, 75 L.Ed. 1117




No. 584

United States Supreme Court

May 18, 1931

Argued April 15, 1931




Appellant was charged under California Penal Code, § 403a, which condemns displaying a red flag in a public place or in a meeting place(a) "as a sign, symbol or emblem of opposition to organized government" or (b) "as an invitation or stimulus to anarchistic action" or (c) "as an aid to propaganda that is of a seditious character." These three purposes, which are expressed disjunctively in the statute, were alleged conjunctively in the information. On her general demurrer to the information, which was overruled, she contended, as was permitted by the California practice, that the statute was repugnant to the Fourteenth Amendment. At the trial, the jury was instructed, following the express terms of the statute, that the appellant should be convicted if the flag was displayed for any of the three purposes. There was a general verdict of guilty. The appellant accepted this instruction, in the state appellate court, but insisted that, under the Fourteenth Amendment, the statute was invalid as being an unwarranted limitation on the right of free speech. The appellate court entertained the contention and decided adversely, expressing doubt of the validity of the statute as related to the first of the three clauses defining purpose ("opposition to organized government,") but construing them as disjunctive and separable, and, upholding the statute as to the other two.


1. That the objection of unconstitutionality, made in the court below, went not only to the statute as a whole, but to each of the three clauses separately. P. 365.

2. Inasmuch as the case was submitted to the jury as permitting conviction under any or all of the three clauses, and inasmuch as it is impossible to determine from the general verdict upon which of the clauses the conviction rested, it follows that, if any of the clauses is invalid under the Constitution, the conviction cannot be upheld. P. 367.

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3. The conception of "liberty " under the due process clause of the Fourteenth Amendment embraces the right of free speech. P. 368.

4. The State may punish those who abuse the right of free speech by utterances which incite to violence and crime and threaten the overthrow of organized government. Id.

5. There is no reason to doubt the validity of the second and third clauses of the statute, construed as they are, by the state court, as relating to such incitement to violence. P. 369.

6. The first clause, condemning display of a flag "as a sign, symbol or emblem of opposition to organized government," construed by the state court as possibly including

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,

or "peaceful and orderly opposition to government by legal means and within constitutional limitations" -- is unconstitutional. Id.

7. The maintenance of 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, is a fundamental principle of our constitutional system. Id.

8. A statute which upon its face, and 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. Id.

62 Cal.App. 788; 290 P. 93, reversed.

APPEAL from a judgment affirming a conviction under § 403a of the Penal Code of California.

HUGHES, J., lead opinion

MR. CHIEF JUSTICE HUGHES delivered the opinion of the Court.

The appellant was convicted in the Superior Court of San Bernardino County, California, for violation of

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§ 403-a of the Penal Code [51 S.Ct. 533] 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 opposition to organized government or as an invitation or stimulus to anarchistic action or as an aid to propaganda that is of a seditious character is guilty of a felony.

The information, in its first count, 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.

The information contained a second count charging conspiracy, but this need not be considered, as the conviction on that count was set aside by the state court. The appellant alone was convicted on the first count.

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, 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. (People v. Mintz, 290 P. 93.) 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

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purpose of shortening the record, a stipulation of facts has been presented on behalf of the appellant and the Attorney General of the State. 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. 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 stipulation further shows that

a library was maintained at the camp containing a large number of books, papers and pamphlets, including much radical communist propaganda, specimens of which are quoted in the opinion of the state court.

These quotations abundantly demonstrated that the books and pamphlets contained incitements to violence and to "armed uprisings," teaching "the indispensability of a desperate, bloody, destructive war as the immediate task of the coming action." Appellant admitted ownership of a number of the books, some of which bore her name. It appears from the stipulation that none of these books or pamphlets was used in the teaching at the camp.

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With respect to the conduct of the appellant, the stipulation contains the following statement: "She" (the appellant)

testified, however, that none of the literature in the library, and particularly none of the exhibits containing radical communist propaganda, was in any way brought to the attention of any child or of any other person, and that no word of violence or anarchism or sedition was employed in her teaching of the children. There was no evidence to the contrary.

The charge in the information, as to the purposes for which the flag was raised, was laid conjunctively, uniting the three purposes which the 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 [51 S.Ct. 534] 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.

In this connection, you are instructed that, if you believe a red flag, such as herein described, was displayed in either of the places mentioned in said information, that it is only necessary for the prosecution to prove to you, beyond a reasonable doubt, that said flag was displayed

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for any one or more of the three...

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