Stromberg v. People of the State of California

283 U.S. 359

Case Year: 1931

Case Ruling: 7-2, Reversed

Opinion Justice: Hughes

FACTS

Yetta Stromberg, a nineteen-year-old Californian, was employed as a supervisor at a children's summer camp in the foothills of the San Bernardino Mountains. Part of her responsibilities included teaching history and economics, and she routinely led lessons on class consciousness and the solidarity of the workers of the world. The camp library also contained books and pamphlets favorable to the communist cause.

A member of the Young Communist League, each day Stromberg conducted a ceremony in which a red flag, a reproduction of the flag of the Soviet Union, was raised, with the children pledging allegiance to the flag of the workers of the world. Under California law, it was a felony to raise a red flag or banner in public, at a meeting, or from a building as a sign of opposition to organized government, as an invitation to anarchistic action, or as an aid to propaganda that is of seditious character. Stromberg was charged with violating this statute.

After she unsuccessfully claimed that the indictment violated her First and Fourteenth Amendment rights, a trial took place. At its end, the judge instructed the jury that if they found that Stromberg to have raised the red flag for any of the three purposes included in the statute, they should return a verdict of guilty. Her attorneys did not object to this instruction. The jury returned a verdict of guilty without indicating which of the three purposes they found to be present in the case. Stromberg appealed on First Amendment grounds, but the state appeals court upheld the conviction. While the judges of that court were of the opinion that the first purpose stated in the statute might be unconstitutional, they held that if any of the three purposes were valid the conviction could be maintained.

MR. CHIEF JUSTICE HUGHES DELIVERED THE OPINION OF THE COURT.

... 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 was 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. If any one of these clauses, which the state court has held to be separable, was invalid, it cannot be determined upon this record that the appellant was not convicted under that clause. It may be added that this is far from being a merely academic proposition, as it appears, upon an examination of the original record filed with this Court, that the State's attorney upon the trial emphatically urged upon the jury that they could convict the appellant under the first clause alone, without regard to the other clauses. It follows that instead of its being permissible to hold, with the state court, that the verdict could be sustained if any one of the clauses of the statute were found to be valid, 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. 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. Gitlow v. New York[1925], Whitney v. California [1927], Fiske v. Kansas [1927]. 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....

Judgment reversed.

SEPARATE OPINION OF MR. JUSTICE MCREYNOLDS.

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? ...

Below, counsel definitely 'stated that he was satisfied that the instructions (to the jury) were correct, and waived any claim of error on that account.' Accordingly, decision was not requested upon any question arising out of the charge; no such question was decided. The instructions were properly disregarded and are now unimportant.

The sole matter of a federal nature considered by the Court of Appeals was the claim that the provisions of Section 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.

MR. JUSTICE BUTLER, DISSENTING.

... 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.... I am of opinion that the judgment below should be affirmed.