Stromberg v. People of State of California, No. 584

CourtUnited States Supreme Court
Writing for the CourtHUGHES
PartiesSTROMBERG v. PEOPLE OF STATE OF CALIFORNIA
Docket NumberNo. 584
Decision Date18 May 1931

283 U.S. 359
51 S.Ct. 532
75 L.Ed. 1117
STROMBERG

v.

PEOPLE OF STATE OF CALIFORNIA.

No. 584.
Argued April 15, 1931.
Decided May 18, 1931.

Page 360

Mr. John Beardsley, of Los Angeles, Cal., for appellant.

Mr. John D. Richer, of Los Angeles, Cal., for the People of the State of California.

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

Page 361

section 403a 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 ahy 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 wilfully, 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 governmnent 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 Californi, th at 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, 51 S. Ct. 343, 75 L. Ed. —, permitting the appellant to prosecute the appeal in forma pauperis and, for the

Page 362

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 workers' 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 were used in the teaching at the camp.

Page 363

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 emblm 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.

'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

Page 364

for any one or more of the three purposes mentioned in the information; in other words, if the prosecution should prove to you beyond a reasonable doubt that the red flag, such as herein described, was displayed at the place or either of said places and for the purposes and objects as alleged in said information, it is only necessary for the prosecution to prove to you beyond a reasonable doubt that said flag was displayed for only one or more of the three purposes alleged in said information, and it is not necessary that the evidence show, beyond a reasonable doubt, that said red flag was displayed for all three purposes charged in said information. Proof, beyond a reasonable doubt of any one or more of the three purposes alleged in said information is sufficient to justify a verdict of guilty under count one of said information.'

Appellant, before the District Court of Appeal, accepted this instruction as correct and waived any claim of error on that account. But 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. In the District Court of Appeal there were three justices, and the concurrence of two justices was necessary to pronounce a judgment. Cal. Const., art. 6, § 4a; Cal. St., 1929, c. 691, pp. 1202, 1203. Two opinions were delivered, one by a single justice, and another by the remaining two justices. The three justices concurred with respect to the affirmance of the conviction of the appellant under the first count, and there was a dissent only in relation to the proceedings on the reversal of the judgment under the second count for conspiracy, a point not in question here. The opinions make it clear that the appellant insisted that, under the Fourteenth Amendment, the statute was invalid as being 'an unwarranted limitation on the right of free speech.'

As the trial court had treated the three purposes of the statute disjunctively, and the appellant had accepted that

Page 365

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. Her concession as to the interpretation of the statute emphasizes, rather than destroys, that contention. The opinion of the two concurring justices explicitly states: 'She' (the appellant) 'directs her argument to the phrase in section 403a of the Penal Code 'of opposition to organized government." Thus directing her argument, we do not think that it can properly be said that the appellant having agreed that, according to the terms of the statute, her conviction could rest exclusively upon that ground, was not contending that the statute was invalid to the extent that it was so applied.

We are not left in doubt as to the construction placed by the state court upon each of the clauses of the statute. 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 justices. After referring, in the language above quoted, to the constitutional question raised by the appellant with respect to this clause, these justices said in their opinion:

'If opposition to organized government were the only act prohibited by this section, we might be forced to agree with appellant. 'Opposition' isa wo rd broad in its meaning. It has been defined as follows:

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978 practice notes
  • U.S. v. Dedman, No. 06-6124.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • May 29, 2008
    ...aside a general verdict because one of the possible bases of conviction was neither unconstitutional as in Stromberg [v. California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117 (1931),] nor even illegal as in Yates [v. United States, 354 U.S. 298, 77 S.Ct. 1064, 1 L.Ed.2d 1356 (1957),] but me......
  • U.S. v. Nersesian, Nos. 600
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • June 29, 1987
    ...if they state cognizable conspiracy offenses, assuming without deciding that it is necessary for us to do so, see Stromberg v. California, 283 U.S. 359, 367-68, 51 S.Ct. 532, 535, 75 L.Ed. 1117 (1931); United States v. Peterson, 768 F.2d 64, 67-68 (2d Cir.), cert. denied, 474 U.S. 923, 106 ......
  • Leonard v. Robinson, No. 05-1728.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • February 2, 2007
    ...relating to political processes. Mills v. Alabama, 384 U.S. 214, 218-19, 86 S.Ct. 1434, 16 L.Ed.2d 484 (1966); Stromberg v. California, 283 U.S. 359, 369, 51 S.Ct. 532, 75 L.Ed. 1117 (1931) ("The maintenance of the opportunity for free political discussion to the end that government may be ......
  • Fowler v. Board of Educ. of Lincoln County, Ky., Nos. 85-5815
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • July 21, 1987
    ...Barnette, 319 U.S. 624, 633-34, 63 S.Ct. 1178, 1183, 87 L.Ed. 1628 (1943) (flag salute is a form of expression); Stromberg v. California, 283 U.S. 359, 368-69, 51 S.Ct. 532, 535-36, 75 L.Ed. 1117 (1931) (display of red flag is expressive However, not every form of conduct is protected by th......
  • Request a trial to view additional results
977 cases
  • U.S. v. Dedman, No. 06-6124.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • May 29, 2008
    ...aside a general verdict because one of the possible bases of conviction was neither unconstitutional as in Stromberg [v. California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117 (1931),] nor even illegal as in Yates [v. United States, 354 U.S. 298, 77 S.Ct. 1064, 1 L.Ed.2d 1356 (1957),] but me......
  • U.S. v. Nersesian, Nos. 600
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • June 29, 1987
    ...if they state cognizable conspiracy offenses, assuming without deciding that it is necessary for us to do so, see Stromberg v. California, 283 U.S. 359, 367-68, 51 S.Ct. 532, 535, 75 L.Ed. 1117 (1931); United States v. Peterson, 768 F.2d 64, 67-68 (2d Cir.), cert. denied, 474 U.S. 923, 106 ......
  • Leonard v. Robinson, No. 05-1728.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • February 2, 2007
    ...relating to political processes. Mills v. Alabama, 384 U.S. 214, 218-19, 86 S.Ct. 1434, 16 L.Ed.2d 484 (1966); Stromberg v. California, 283 U.S. 359, 369, 51 S.Ct. 532, 75 L.Ed. 1117 (1931) ("The maintenance of the opportunity for free political discussion to the end that government may be ......
  • Fowler v. Board of Educ. of Lincoln County, Ky., Nos. 85-5815
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • July 21, 1987
    ...Barnette, 319 U.S. 624, 633-34, 63 S.Ct. 1178, 1183, 87 L.Ed. 1628 (1943) (flag salute is a form of expression); Stromberg v. California, 283 U.S. 359, 368-69, 51 S.Ct. 532, 535-36, 75 L.Ed. 1117 (1931) (display of red flag is expressive However, not every form of conduct is protected by th......
  • Request a trial to view additional results
3 books & journal articles
  • The Fiction of the First Freedom
    • United States
    • Political Research Quarterly Nbr. 6-2, June 1953
    • June 1, 1953
    ...U.S. 494 (1951). 26 Whitney v. California, 274 U.S. 357 (1927); Burns v. United States, 274 U.S. 328 (1927). 27 Strarnberg v. California, 283 U.S. 359 (1931); DeJonge v. Oregon, 299 U.S. 353 (1937); Herndon Lowry, 301 U.S. 242 (1937); Fiske v. Kansas, 274 U.S. 380 (1927). 28 Terminiello v. ......
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    ...U.S. 535 (1942).Spence v. Washington, 418 U.S. 405 (1974).Stefanoff v. Hays County, 154 F.3d 523 (5th Cir. 1998).Stromberg v. California, 283 U.S. 359 (1931).Superintendent of Belchertown State School v. Saikewicz, 370 N.E.2d 417 (Mass. 1977).Texas v. Johnson, 491 U.S. 397 (1989).Thor v. Su......
  • The Burger Court and the Primacy of Political Expression
    • United States
    • Political Research Quarterly Nbr. 40-3, September 1987
    • September 1, 1987
    ...Chief Justice Hughes should be given credit for originating the primacy of politi- cal expression principle. In Stromberg v. California, 283 U.S. 359, 369 (1931), he wrote:"The maintenance of the opportunity for free political discussion to the end that govern-ment may be responsive to the ......

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