Stromberg v. California, 283 U.S. 359 (1931)
The First Amendment extends to symbolic speech, or expressive conduct, so a state cannot prevent people from flying red flags as a political statement.
U.S. Supreme CourtStromberg v. California, 283 U.S. 359 (1931)
Stromberg v. California
Argued April 15, 1931
Decided May 18, 1931
283 U.S. 359
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. 283 U. S. 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. 283 U. S. 367.
3. The conception of "liberty " under the due process clause of the Fourteenth Amendment embraces the right of free speech. P. 283 U. S. 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. 283 U. S. 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 Pac. 93, reversed.
APPEAL from a judgment affirming a conviction under § 403a of the Penal Code of California.