Stromberg v. California

Co., S. W. 645. Warmack v. Stave Major supra. Griffin Corp., (2d) Oklahoma Natural Gas v. F. 545.

Decree reversed. v. STROMBERG CALIFORNIA. Argued April 15, 1931. Decided May 18, 1931.

No. 584. Beardsley John Mr. appellant. Richer, John D. Attorney General of

Mr. Deputy Cali- Webb, S. U. fornia, Attorney General, Mr. with whom brief, for appellee. on Hughes Chief Justice delivered the opinion

Mr. Court. Superior in the Court of was convicted County, California, Bernardino for violation San § 403-a of the Penal Code of that That State. section provides:

“Any person who or displays flag, badge red banner any flag, or or badge, banner, any device of color formor public whatever or placé any meeting place from or public assembly, house, on any building or sign, symbol window as emblem or as an invitation or stimulus to anarchistic or as an propaganda action aid a guilty seditious character is of a felony.”

The in count, its first the information, charged other appellant defendants, and at time and the place feloniously set did dis- forth, wilfully, unlawfully and and in flag public a red banner a and in a meet- play place emblem sign, symbol as a and ing place as an organized government and invitation and stimulus action and an aid to propaganda to anarchistic seditious was of a character.” is and charging a con- information contained second count The not be considered, but this need as the conviction spiracy, on was set aside court. ap- that count the'state on alone was convicted the first count. pellant of á argument general On the demurrer to informa- the the tion, appellant permitted by the was contended, practice California, was invalid because the Amendment of the Federal repugnant to the Fourteenth overruled, The demurrer was and the ap- Constitution. pleaded followed, not" Conviction motions pellant guilty. and judgment denied, for new trial in arrest of were a and judgment of Appeal on the District Court the appeal Mintz, 93.) was 290 Pac. Petition (People affirmed. v. hearing by for a the of California was Supreme Court and has been taken this appeal an Court. denied, Court an order granted permitting appellant This for prosecute appeal pauperis and, forma record, a facts stipulation shortening of the appellant behalf on presented has been ap- appears State. It of the Attorney General a citizen of of nineteen, woman young pellant, supervisors one of the by birth, was United States ten fifteen children, years between camp summer San Bernardino mountains. the foothills of the age, teaching daily study, in their led the children Appellant things, other history “Among and economies. them solidarity consciousness, the taught children were class of the the workers workers, theory all.” Appellant and brothers world are one blood an interna- Young League, Communist a member Party. affiliated with the Communist organization tional daily ceremony her at charge concerned against supervised and directed in which camp, in raising camp-made reproduc- a red flag, the children Russia, of Soviet which was also the tion Party in the In con- of the Communist United States.” the there a ritual at which flag-raising, nection with was at salute and recited a of al- pledge the children stood “ to red to the cause for legiance flag, the worker’s stands; lives, one aim our freedom throughout which it working stipulation class.” The further shows for at library containing a w7asmaintained the camp of large papers number includ- books, pamphlets, much communist ing propaganda, specimens radical in the court.” quoted which are the state abundantly These demonstrated that books quotations contained incitements to violence and pamphlets “the uprisings,” teaching indispensability “armed immediate bloody, destructive war as the task desperate, ownership admitted coming Appellant action.” bore her name. books, of a number of the some of which that none of these books appears stipulation It from the in at teaching camp. or were used pamphlets the stipula- appellant, to the conduct respect With ” (the appel- She following statement: contains the tion in lant) however, that none the literature “testified, library, and none of con- particularly the exhibits taining way radical communist was in propaganda, any brought to the attention of other any any child or of person, and that no or word of violence anarchism or sedition employed was in her teaching of the children. There was no evidence to the contrary.” charge in the for information, as to the purposes which the flag raised, was uniting was conjunctively, laid purposes the three But condemned. in the instructions to the trial jury, the court followed express terms the statute and treated the described purposes disjunctively, holding should be convicted if displayed any one of three purposes named. The follows: instruction was as “ In you jury this connection if are instructed that should believe beyond a reasonable doubt the de- them, or either of fendants, or to be displayed, caused red displayed, flag, banner, badge, or any flag, badge, or banner, or any any device color or form whatever public place meeting place, charged count information, and if from you further believe one. beyond flag, the evidence reasonable doubt that said banner, displayed, or caused to be badge, device was or emblem of displayéd, sign, symbol, as a government, or was an invitation stimulus action, or was in aid to that is propaganda anarchistic guilty find such defendants character, you a seditious will in one of charged as count the information. are that if be- you you In connection instructed this in described, displayed herein was such as flag, lieve a red information, in said mentioned the places either to prove you, for necessary prosecution only it is doubt, displayed flag that said was beyond a reasonable purposes mentioned of the three any for one or more should words, if the prosecution in other information; that the red flag, doubt a reasonable you beyond prove place at the displayed was described, herein such as objects purposes and for the and places either of said for only necessary information, alleged said reasonable doubt a you beyond prosecution prove for one more only displayed was said and it is information, in said not alleged three purposes beyond reasonable show, a necessary that the evidence red for all three displayed pur- was doubt, that said beyond a information. charged Proof, in said poses the three doubt, any purposes one more of reasonable a justify information is sufficient to verdict alleged in said one of information.” under count said guilty Appeal, accepted the District Court of before Appellant, correct and waived claim of error instruction as this her appellant challenge on that But continued account. constitutionality of the the court on statute, her contention and appeal entertained decided the con- her. In the against stitutional District Court question three justices, there were the concurrence Appeal necessary justices pronounce judgment. of two was VI, Const., (a); Cal. Art. Cal. Stats., 1929, 691, c. § delivered, 1203. Two were 1202, opinions one pp. single remaining justices. another two justice, to the affirmance justices respect three concurred the appellant count, of the conviction of under the first only a dissent relation to the proceedings and there was under judgment the second on the reversal count here. not in point opinions conspiracy, that, insisted under appellant it clear that the make Amendment, being the statute invalid Fourteenth right limitation on of free an unwarranted speech.” purposes court had treated the three As trial and the had accepted disjunctively, construction, we think that fair only interpretation of her contention is it validity, that related to the not merely of the statute as a whole, taken but each one of three clauses separately relied the State in upon by order to obtain a Her conviction. concession as to the interpretation of the statute rather emphasizes, than de- con- stroys, contention. of the two curring justices explicitly (the states: “She” appellant) argument her directs to 403a of phrase section ‘ ” the Penal Code of opposition organized government.’ it directing Thus her not think can argument, we do be said that properly appellant having agreed that, according statute, to the terms of her conviction could exclusively upon ground,- contending rest was not was invalid the statute so extent applied.

We are not left construction placed doubt by state each of the clauses of the statute. upon described, is, to the relating The first dis- or play or emblem of symbol banner as a sign, by discussed organized government,” is language in the concurring justices. referring, two After quoted, above to the constitutional raised respect justices with to this these said clause, in their : opinion [p. 97] “ If opposition only government were prohibited might agree act this section we forced to ‘ ’ appellant. Opposition a word broad in its meaning. It has been defined as follows:

“‘The act of opposing resisting; antagonism. of being opposite also, state or opposed; antithesis; a posi- confronting tion another contrast. That placing is, as, furnishes an obstacle to some result; flows opposition. stream without The political party op- to the posed ministry or administration; often used as, the adjectively opposition press.’ include the and peaceful to “It be construed might con- as and government to a opposition orderly by of political those another by party trolled one political did not which patriotic, minded and equally high party might in It also be construed agree power. with the one orderly opposition and peaceful include limitations. within means and constitutional by legal of development on and thought new Progress depends extent, achieved is, to change ideas. All a certain original far old, and in so by the of the new to law, is guaran- it is within the such peaceful opposition as inde- recognized symbol is as a teed our people containing promise It pendent thought progress. may evolution, but political as a means permitted not of revolution.” respect With to the described in the second “

statute, invitation of a or banner as an display flag action,” or stimulus to anarchistic the concurring justices quoted decisions to the accepted judicial definitions and as authorities, meaning “anarchistic action.” These clearly set forth and show approved opinion, referring the term was the state court as regarded by by existing the overthrow and violence law force “ order, unlawful, to the use of violent felonious destroy means to and human The conclu- property life.” sion was thus stated: It is therefore clear when sec- prohibits tion 403a of the Penal Code red an invitation or stimulus to action anarchistic acts have a and well-settled prohibits which well-defined law of if meaning land, teaching our al- lowed into force and effect would put mean revolu- tion in its most dreaded form.” gave state court further its interpretation of the statute, third clause of the is, in relation to the dis- or banner as an play aid to propaganda is of a seditious character.” opinions Both dealt with the it is said: meaning of this clause. Thus one sedition laws which counsel concedes “Appellants’ con- 'interdict of force violence’ are against use sistently courts, and all authorities upheld him cited . . Sedition support proposition. . tending State, defined as the of disorder in the stirring up treason, Certainly toward but overt act. lacking an '* ’ advocacy of overturning govern- the force violence ment other of State falls within that definition.” .The takes a the local opinion Assuming similar view. referring statute is thus construed the state court as by to the of in the of advocacy force violence overthrow government, we do not the necessary, purposes find it case, of the with to review the historic present controversy ” to sedition laws or as respect to consider the validity to dealing broadly the statute and vaguely conduct, with what is any termed seditious without limit- ing judi- either statute itself or interpretation the cial construction.

Having reached these meaning conclusions to the of the three clauses of the and statute, doubting the consti- tutionality of the clause, the first state rested its remaining upon decision the clauses. The basis of the decision, fully as more in the of stated the two concurring justices, this: constitutionality was “The of ' of section, the this phrase ’ is This be questionable. phrase can elimi- nated from section without its materially changing the it, purposes. complete section is without with enact- upheld it it can be constitutional eliminated Legislature ment the of the State of California.” Ac- by. statute, the first clause the cordingly, disregarding clauses, other of the appel- the conviction upholding lant was sustained. agree disposition are unable to with this

We against general was a the appellant The verdict case. it rested. which upon the ground one. It did not specify statute, forth in As purposes there were three set given might verdict jury instructed that their were considered, any them, respect independently with one it is which clause statute impossible say under clauses, any If one these the conviction was obtained. in- state to be separable, court has held record that valid, upon cannot be determined this It may was not convicted under that clause. appellant far being merely this is from academic added an upon as it examination proposition, appears, Court, that State’s attor- original record filed with this ney upon emphatically urged upon jury the trial under the they could convict the first clause other alone, regard without clauses. It follows that being hold, permissible instead its the state if court, that the verdict could be sustained one of valid, found to be were clauses from the manner in which the necessary conclusion case if of jury that, is the clauses in ques- sent to the was the Federal invalid under the Constitution, tion is con- upheld. cannot be viction brought question thus

We are whether any as construed clauses, of the three the state one court, to the its face Federal upon repugnant is Constitution so it not constitute could foundation for a .lawful prosecution. principles The criminal be applied have forth in our former clearly set been decisions. It has conception determined that been liberty under clause of the process the due Fourteenth Amendment right of free speech. embraces Gitlow v. York, New 652, 666; v. Whitney 268 U. S. 274 California, U. 357, S. Kansas, 373; Fiske v. 362, U. 371, 380, S. 382. The an right is not absolute and one, the State in the exercise police power may punish its the abuse of this freedom. is no but There State may thus pro- vide for those who punishment indulge utter- which ances incite to violence and crime and threaten organized overthrow of government by unlawful There no means. constitutional for such immunity conduct abhorrent to our institutions. Gitlow v. New York, supra; Whitney California, v. supra. We have no reason to validity doubt the second and third clauses of the as construed by the state to relate to such incitements to violence.

The question is thus narrowed validity of the clause, the first is, with respect to the sign, symbol “as or emblem of to or- ganized government,” and the construction which the state court has placed every this clause removes upon element of indefi- recognized doubt. The state court ambiguity niteness and of the clause. court con- embracing be conduct might sidered it construed prohibit. Thus constitutionally could not State include might said that the clause construed to orderly opposition government and to a peaceful party by controlled one those political patri- political equally high minded party another It power. might with the one in otic, agree which did not orderly to include peaceful opposi- be construed also means and within constitu- by legal government tion to maintenance opportunity limitations.” tional the end discussion to free political will, and that responsive people may means, lawful may by be obtained an opportunity changes is a fundamental Republic, security the essential A system. constitutional statute which of our principle authoritatively construed, vague is so and as face, its upon of the fair punishment the use permit as to and'indefinite repugnant guaranty liberty to the of opportunity this the Fourteenth in Amendment. The first contained the being upon face, invalid its con- clause of the discloses far as the record so of the appellant, viction must be exclusively, upon rested that clause may have set aside. for further be remanded must

As for this reason case and other this opinion, not inconsistent with proceedings it neces- is not proceedings, adduced such may facts argued which have been questions sary to deal with second validity at bar as to the constitutional their simply not statute, upon third clauses con- is, face, case; in the instant but as applied by evidence, fact warranted sider the conclusions of filed with original the Court by either as record shown stipulation, on disclosed or as present appeal, agree. not .as which the do import parties to the reversed. Judgment McReynolds, dissenting. Me. Justice announced, scores, perhaps This Court often has may not rule, has hundreds, applied times from coining in a a state cause pass upon any question there determined record fails to show was which the court duly or determination. presented only upon ruled below federal matter sub- (District only Court and the one there Appeals), mitted, demurrer to the Informa- upon general arose set forth an offense for which adequately tion. this Did without violating could punished the defendant Amendment? Fourteenth California, 403a, provides—

Section Penal Code a red banner or “Any displays flag, badge who person any banner, or or device color form any flag, badge, or any or or public place meeting place whatever any house, building or from on win- public assembly, emblem of sign, symbol organ- dow a stimulus, government ized or as an invitation or action or as an anarchistic aid to propaganda of a seditious guilty felony.” character is And Information charged “did plaintiff wilfully, unlawfully, feloniously display a red and banner in public a place meeting and a ás place sign, symbol, and an emblem of opposition and as an invitation and stimulus t.o anarchistic action and as an aid to propaganda is and ofwas a seditious character.” “ Below, counsel definitely stated that he was satisfied the instructions jury] were correct, [to waived claim of error on that account.” Accordingly, decision was not requested upon any question out arising no charge; such The in- decided. were properly disregarded structions and are unim- now portant. matter of federal nature sole considered of Appeals

Court was the claim provisions § Penal Code were conflict with 403a of the the Four- It held the divisible teenth Amendment. and that violating stood all of the in- charged petitioner therein, certainly some of which were good, hibitions if one were upset paragraph not be even could conviction I right and, think, seems plainly The conclusion invalid. be affirmed. judgment should challenged Butler, dissenting. Mr. Justice far that, in so 403a declares it § Court decides first specified, for the a crime organized government,” emblem opposition as an and the denies free court holds right speech, section ” in the liberty included safe- right concept to be state due clause against process action guarded It sustains the for- parts Amendment. Fourteenth 372 “ as an invitation or flag of a

bidding display the public, to an aid propaganda action or as anarchistic stimulus which the The count on character.” is seditious that of a flag displayed the appellant that charges rests conviction the section. denounced by for the purposes all ways valid, to be the section all the clauses Assuming one of specified for the purpose of a display sufficient to warrant conviction. them would and, finding invalid clause holds first Court that, exclusively, clause upon have rested may judgment the conviction. sets aside shows affirmatively the record I opinion

1. am for violation of not convicted the first clause. case, the to the trial of this prior supreme

Shortly city held invalid ordinance purport- of California court public unlawful the or em- make ing espousing of an organization blem principles antagonistic the United States people Hartman, In re government. or form our Constitution Under that decision the Pac. 548. 447; 182 Cal. courts were bound to hold invalid the California lower construed as peaceable opposition §of 403a first clause And the record shows government. the trial court had us counsel and case before in mind. decision and relied on in the here quoted opinion

The instruction attorney. requested state’s No. 17, if It instruction as it stood alone. does construes object alone. Defendant’s did not attorney not stand to it but on other hand requested, and the except other instructions. are Nos. 10 gave, They and 11 follows: “You are instructed that the inhabitants of the United have individually collectively right States both constitution, in our peaceable changes laws, advocate although changes may such of government, form.' antago- of government principles based theories upon which now serve as their basis. to those nistic under the Constitution are instructed that “You this an State, and of States, organiza- laws United in our advocating changes constitution, tion peaceably may form of such government, although changes or laws an- or of government theories upon principles based may to those now serve their basis, tagonistic or a emblem of such adopt flag signifying the the and that or display possession of such organization, made an or emblem cannot be unlawful act.” three here referred to was effect instructions jury right to direct the that defendant had the definitely advocate peaceable changes gov- without limit to in our under our constitution an ernment, organ- that and laws changes ization our advocating government, peaceably no to what what theories or upon prin- matter extent a the may adopt signifying of such ciples, purposes and that is organization, impossible to make that unlawful.

2. that, having The record to show from fails aside these judge give jury trial instructions suggested by any challenge defendant did in manner her, separately in the trial court the of the first clause. validity

That could not have been raised the demurrer by conjunctively information because it charged to. disjunctively by three are denounced purposes And the section. failure of defendant’s counsel in any object manner to except state’s instruction No. his statement before the district coupled (People Mintz, “he appeal 93) v. 290 Pac. was satisfied the instructions were and waived correct, ” any indubitably claim of error on that account shows in- opinion giving that he of defendant’s was eliminated of con- possibility structions above all quoted of peaceable emblem flag as an viction for the government. first did assail the at the trial 3. if defendant And, by opinion is shown clause, that contention definitely been waived. court below to have section 95): part (p. It is stated that there ques- in passing upon considered necessary 403a person reads follows: 'Any raised by appeal, tions meeting in any place red flag, who ... displays is of a seditious propaganda as an aid to ... is That statement felony.” guilty character defendant’s one showing closely followed the instructions. satisfied with counsel agreed were in the These definite statements are They the court. judges constituting three by the concur- negatived impaired manner not The first judges. of two 96-102. ring opinion Pp. only the concurring opinion clause discussed ques- of its showing that, notwithstanding should be held the rest of the section validity, tionable a did not intend to sustain judges these Clearly valid. in their on questioned the clause so resting conviction opinion. bearing that has they say The full substance of all “ 97): contention that 403a

follows section (p. Appellant’s Penal is unconstitutional on the ground Code right limitation of speech it is’an unwarranted on the free of guaranteed to the the Constitutions people of California, the State deserves United States and of seri- ous her to argument consideration. She directs ' of of in section 403a the Penal phrase Code; opposition If organized government.’ opposition to only government were the act this section prohibited by might agree appellant.” we be forced to After some they of conclude pages discussion as to clause the second “ (p. 99): It is therefore clear that when section 403a of Penal prohibits Code of a an display red invitation or prohibits stimulus to action it anarchistic acts which have a meaning well-defined well-settled of our land, the law which if to be teaching allowed put into force and mean in its effect would revolution most dreaded form.” Turning then to a clause, they consideration of the third

say: The in question section prohibits also of a red an flag as aid to that is seditious propaganda nature.” After discussion, they (p. 99) conclude that: “The term ‘sedition’ and the word have ‘seditious’ of well-defined meanings teaching law. That long against sedition our Government can be and has been prohibited needs further no citation of authorities.” clauses,

Then as to the seeond and third summing up they say (p. 99): provisions “As we view the section of the Penal Code, prohibition 403a its displaying ‘ red action, an invitation stimulus to anarchistic or as aid an that is a seditious propaganda character’ and a certain, is and constitutional and proper legislative enactment. It is not to the contrary provisions either or Federal freedom State guaranteeing Constitutions our speech people.” refer They again the first clause: The constitution- ‘ section, this ality phrase organ- ’ questionable.” And, disclosing ized reference, of the “This they say: phrase can from without changing the section materially eliminated it, without complete section its purposes. as a constitutional enact- upheld can

it eliminated it of the State California.” Legislature ment fair of both I consideration opinion opinions am of clear that not very makes defendant did parts in all their or charge jury might under could below that claim of the first clause violating guilty have her found did not decide appeal that the district section, could clause was or under that whether conviction consider clause the first validity had, and lawfully be only upon concurring opinion was discussed uncon- whether, if that section were part must fail. stitutional, the other also parts is not me that this record the Court 4. It on seems the mere on to whether called decide sort, is with- speech emblem of whatever its purpose, of speech meaning protection constitutional a part whether such freedom is press decide by the Fourteenth Amendment liberty protected anarchy that is certain to follow a successful whether ” is not sufficient hold that all to that end are outside the reason to activities ” Cheek, Cf. Prudential Ins. v. protected. so Co. liberty York, 652, 530. Gitlow v. New S. 666. 259 U. S. U. California, Kansas, 274 U. S. 357. Fiske v. Whitney v. 380. 274 U. S. judgment

I am of below should be affirmed. QUERY

GRANITEVILLE MANUFACTURING CO. v. et al. Argued 27, Decided May April 18, 596. 1931.

No. 1931.

Case Details

Case Name: Stromberg v. California

Court Name: Supreme Court of the United States

Date Published: May 18, 1931

Citation: 283 U.S. 359

Docket Number: 584

Court Abbreviation: SCOTUS