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.
Held:
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.
Page 283 U. S. 360
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.
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 283 U. S. 361
§ 403-a 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 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 Pac. 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
Page 283 U. S. 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
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.
Page 283 U. S. 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 emblem 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 283 U. S. 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. VI, § 4(a); Cal.Stats.,
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 283 U. S. 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 [p. 97]:
"If opposition to organized government were the only act
prohibited by this section, we might be forced to agree with
appellant. 'Opposition' is a word broad in its meaning. It has been
defined as follows:"
" The act of opposing or resisting; antagonism. The state of
being opposite or opposed; antithesis; also, a position confronting
another or a placing in contrast. That which is, or furnishes an
obstacle to some result; as, the stream flows without opposition.
The political party opposed to the ministry or administration;
often used adjectively as, the opposition press. "
Page 283 U. S. 366
"It 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. Progress depends on new thought and the development of
original ideas. All change is, to a certain extent, achieved by the
opposition of the new to the old, and, insofar as it is within the
law, such peaceful opposition is guaranteed to our people and is
recognized as a symbol of independent thought containing the
promise of progress. It may be permitted as a means of political
evolution, but not of revolution."
With respect to the second purpose described in the statute, the
display of a flag or banner "as an invitation or stimulus to
anarchistic action," the concurring justices quoted accepted
definitions and judicial decisions as to the meaning of
"anarchistic action." These authorities, as set forth and approved
in the opinion, show clearly that the term was regarded by the
state court as referring to the overthrow by force and violence of
the existing law and order, to the use of "unlawful, violent and
felonious means to destroy property and human life." The conclusion
was thus stated:
"It is therefore clear that, when section 403a of the Penal Code
prohibits a display of a red flag as an invitation or stimulus to
anarchistic action, it prohibits acts which have a well defined and
well settled meaning in the law of our land, a teaching which, if
allowed to be put into force and effect, would mean revolution in
its most dreaded form."
The state court further gave its interpretation of the third
clause of the statute, that is, in relation to the display of a
flag or banner "as an aid to propaganda that is of a seditious
character." Both opinions dealt with the
Page 283 U. S. 367
meaning of this clause. Thus, in one opinion, it is said:
"Appellants' counsel concedes that sedition laws which
'interdict against the use of force or violence' are consistently
upheld by the courts, and all of the authorities cited by him
support that proposition. . . . Sedition is defined as the stirring
up of disorder in the State, tending toward treason, but lacking an
overt act. Certainly the 'advocacy of force or violence' in
overturning the government of a State falls within that
definition."
The other opinion takes a similar view. Assuming that the local
statute is thus construed by the state court as referring to the
advocacy of force or violence in the overthrow of government, we do
not find it necessary, for the purposes of the present case, to
review the historic controversy with respect to "sedition laws," or
to consider the question as to the validity of a statute dealing
broadly and vaguely with what is termed seditious conduct, without
any limiting interpretation either by the statute itself or by
judicial construction.
Having reached these conclusions as to the meaning of the three
clauses of the statute, and doubting the constitutionality of the
first clause, the state court rested its decision upon the
remaining clauses. The basis of the decision, as more fully stated
in the opinion of the two concurring justices, was this:
"The constitutionality of the phrase of this section, 'of
opposition to organized government' is questionable. This phrase
can be eliminated from the section without materially changing its
purposes. The section is complete without it, and, with it
eliminated, it can be upheld as a constitutional enactment by the
Legislature of the State of California."
Accordingly, disregarding the first clause of the statute and
upholding the other clauses, the conviction of the appellant was
sustained.
We are unable to agree with this disposition of the case. The
verdict against the appellant was a general
Page 283 U. S. 368
one. It did not specify the ground upon which it rested. As
there were three purposes set forth in the statute, and the jury
were 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 was 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, 268 U.
S. 652,
268 U. S. 666;
Whitney v. California, 274 U. S. 357,
274 U. S. 362,
274 U. S. 371,
274 U. S. 373;
Fiske v. Kansas, 274 U. S. 380,
274 U. S. 382.
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
Page 283 U. S. 369
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.
Gitlow
v. New York, supra; Whitney v. California, supra. 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
Page 283 U. S. 370
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.
As, for this reason, the case must be remanded for further
proceedings not inconsistent with this opinion, and other facts may
be adduced in such proceedings, it is not necessary to deal with
the questions which have been argued at the bar as to the
constitutional validity of the second and third clauses of the
statute, not simply upon their face, but as applied in the instant
case; that is, to consider the conclusions of fact warranted by the
evidence, either as shown by the original record filed with the
Court on the present appeal or as disclosed by the stipulation, as
to the import of which the parties do not agree.
Judgment reversed.
MR. JUSTICE McREYNOLDS, dissenting.
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?
Section 403a, Penal Code of California, 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
Page 283 U. S. 371
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."
And the Information charged that the plaintiff
"did willfully, unlawfully, and feloniously display a red flag
and banner in a public place and a meeting place as a sign, symbol,
and an 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."
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 § 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.
The Court decides that, insofar as § 403a declares it a crime to
display a flag for the first purpose specified, "as an emblem of
opposition to organized government," the section denies right of
free speech, and the court holds that right to be included in the
concept of "liberty" safeguarded against state action by the due
process clause of the Fourteenth Amendment. It sustains the parts
forbidding
Page 283 U. S. 372
the public display of a flag "as an invitation or stimulus to
anarchistic action or as an aid to propaganda that is of a
seditious character." The count on which the conviction rests
charges that the appellant displayed a flag in ways and for all the
purposes denounced by the section. Assuming all the clauses of the
section to be valid, the display of a flag for the purpose
specified in any one of them would be sufficient to warrant
conviction. The Court holds the first clause invalid and, finding
that the judgment may have rested upon that clause exclusively,
sets aside the conviction.
1. I am of opinion that the record affirmatively shows that
appellant was not convicted for violation of the first clause.
Shortly prior to the trial of this case, the supreme court of
California held invalid a city ordinance purporting to make
unlawful the public display of a flag or emblem of an organization
espousing for the government of the people of the United States
principles antagonistic to our Constitution or form of government.
In re Hartman, 182 Cal. 447; 188 Pac. 548. Under that
decision, the California lower courts were bound to hold invalid
the first clause of § 403a construed as peaceable opposition to
organized government. And the record shows that, in the case before
us, counsel and the trial court had that decision in mind.
The instruction quoted and relied on in the opinion here is No.
17, requested by the state's attorney. The opinion construes that
instruction as if it stood alone. It does not stand alone.
Defendant's attorney did not object or except to it, but, on the
other hand, requested, and the court gave, other instructions. They
are Nos. 10 and 11, as follows:
"You are instructed that the inhabitants of the United States
have, both individually and collectively, the right to advocate
peaceable changes in our constitution, laws,
Page 283 U. S. 373
or form of government, although such changes may be based upon
theories or principles of government antagonistic to those which
now serve as their basis."
"You are instructed that, under the Constitution and laws of the
United States, and of this State, an organization peaceably
advocating changes in our constitution, laws or form of government,
although such changes may be based upon theories or principles of
government antagonistic to those which now serve as their basis,
may adopt a flag or emblem signifying the purpose of such
organization, and that the display or possession of such flag or
emblem cannot be made an unlawful act."
The effect of the three instructions here referred to was
definitely to direct the jury that defendant had the right, without
limit, to advocate peaceable changes in our government, that, under
our constitution and laws, an organization peaceably advocating
changes in our government, no matter to what extent or upon what
theories or principles, may adopt a flag signifying the purposes of
such organization, and that it is impossible to make that
unlawful.
2. The record fails to show that, aside from having the trial
judge give to the jury these instructions suggested by her,
defendant did in any manner separately challenge in the trial court
the validity of the first clause.
That question could not have been raised by the demurrer to the
information because it charged conjunctively the three purposes
that are disjunctively denounced by the section. And the failure of
defendant's counsel in any manner to object or except to state's
instruction No. 17, coupled with his statement before the district
court of appeal (
People v. Mintz, 290 Pac. 93) that "he
was satisfied that the instructions were correct, and waived any
claim of error on that account" indubitably shows that he was of
opinion that the giving of defendant's instructions above-quoted
eliminated all possibility of conviction
Page 283 U. S. 374
for the display of a flag as an emblem of peaceable opposition
to organized government.
3. And, if defendant at the trial did assail the first clause,
that contention is shown by the opinion of the court below to have
been definitely waived.
It is there stated that (p. 95):
"The part of section 403a necessary to be considered in passing
upon the questions raised by the appeal, reads as follows:"
"Any person who displays a red flag, . . . in any meeting place
. . . as an aid to propaganda that is of a seditious character is
guilty of a felony."
"That statement is closely followed by the one showing that
defendant's counsel was satisfied with the instructions."
These definite statements in the opinion were agreed to by the
three judges constituting the court. They are not in any manner
negatived or impaired by the concurring opinion of two of the
judges. Pp. 96-102. The first clause was discussed in the
concurring opinion only for the purpose of shoving that,
notwithstanding its questionable validity, the rest of the section
should be held valid. Clearly these judges did not intend to
sustain a conviction resting on the clause so questioned in their
opinion.
The full substance of all they say that has any bearing follows
(p. 97):
"Appellant's contention that section 403a of the Penal Code is
unconstitutional on the ground that it is an unwarranted limitation
on the right of free speech guaranteed to the people by the
Constitutions of the United States and of the State of California,
deserves serious consideration. She directs her argument to the
phrase in section 403a of the Penal Code 'of opposition to
organized government.' If opposition to organized government were
the only act prohibited by this section. we might be forced to
agree with appellant."
After some pages of discussion, they conclude as to the second
clause
Page 283 U. S. 375
(p. 99):
"It is therefore clear that, when section 403a of the Penal Code
prohibits a display of a red flag as an invitation or stimulus to
anarchistic action. it prohibits acts which have a well defined and
well settled meaning in the law of our land, a teaching which, if
allowed to be put into force and effect, would mean revolution in
its most dreaded form."
Turning, then, to a consideration of the third clause, they say:
"The section in question also prohibits the display of a red flag
as an aid to propaganda that is of a seditious nature." After
discussion, they conclude (p. 99) that:
"The term 'sedition' and the word 'seditious' have well defined
meanings in law. That the teaching of sedition against our
Government can be and has long been prohibited needs no further
citation of authorities."
Then, summing up as to the second and third clauses, they say
(p. 99):
"As we view the provisions of section 403a of the Penal Code,
its prohibition of displaying a red flag 'as an invitation or
stimulus to anarchistic action, or as an aid to propaganda that is
of a seditious character' is certain, and a proper and
constitutional and legislative enactment. It is not contrary to the
provisions of either the State or Federal Constitutions
guaranteeing freedom of speech to our people."
They refer again to the first clause: "The constitutionality of
the phrase of this section
of opposition to organized
government' is questionable." And, disclosing the purpose of the
reference, they say:
"This phrase can be eliminated from the section without
materially changing its purposes. The section is complete without
it, and, with it eliminated, it can be upheld as a constitutional
enactment by the Legislature of the State of California."
I am of opinion that fair consideration of both opinions in all
their parts makes it very clear that defendant did not claim below
that, under the charge, the jury might or could
Page 283 U. S. 376
have found her guilty of violating the first clause of the
section, that the district court of appeal did not decide or
consider whether conviction under that clause was or could lawfully
be had, and that the validity of the first clause was discussed in
the concurring opinion only upon the question whether, if that part
of the section were unconstitutional, the other parts must also
fail.
4. 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.
Cf. Prudential Ins. Co. v. Cheek,
259 U. S. 530.
Gitlow v. New York, 268 U. S. 652,
268 U. S. 666.
Whitney v. California, 274 U. S. 357.
Fiske v. Kansas, 274 U. S. 380.
I am of opinion that the judgment below should be affirmed.