Stromberg v. California
The Supreme Court threw out the conviction of a young camp counselor who was found guilty of displaying a red flag under a California law banning flags shown as a symbol of opposition to organized government or as incitement to anarchy or sedition.
Because the jury could have convicted her solely under the 'opposition to organized government' part of the law, and that part was so vague it could punish peaceful, lawful political dissent, the Court found it unconstitutional and reversed the conviction — an early case establishing that vague speech laws violate the Fourteenth Amendment.
“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 Court's central holding that vague speech laws violate constitutional liberty.
How it got here: A California trial court convicted her; the District Court of Appeal affirmed and the state supreme court denied review, so she appealed to the U.S. Supreme Court.
The Case in Depth
What happened
A nineteen-year-old counselor at a children's summer camp led a daily ceremony raising a red flag resembling the Soviet and Communist Party flag, with children reciting a pledge to 'the worker's red flag.' She was a member of the Young Communist League. California charged her under a law banning flag displays symbolizing opposition to organized government, inviting anarchistic action, or aiding seditious propaganda.
The question before the Court
Could California convict a summer camp counselor for displaying a red flag as a symbol of opposition to organized government, or did that violate free speech?
Why it matters
This was one of the first cases where the Supreme Court struck down a state law for violating free speech rights under the Fourteenth Amendment. It signaled that governments cannot use vague bans on 'opposition to organized government' to punish peaceful political dissent, protecting the ability of citizens to criticize or advocate change to their government through lawful means.
What changes now
The case was sent back to the California courts for further proceedings consistent with the Court's opinion. The Court did not decide whether the other two clauses of the law were valid as actually applied to the facts, leaving those questions open for further litigation. The ruling is a final decision on the constitutional question of the first clause's facial validity.
What this does not decide
The Court did not decide whether the anarchistic-action or seditious-propaganda clauses were valid as applied to the specific facts of this case, only that they were not facially invalid. It also did not rule on whether displaying a flag is protected speech in all circumstances.
Concurrences and dissents
Dissent — Justice McReynolds
Justice McReynolds argued the Court was not entitled to review the vagueness question because the only issue actually presented below was a general demurrer challenging the statute as a whole, and defense counsel had accepted the jury instructions as correct. He believed the state court correctly held the statute divisible, so the conviction should stand even if one clause were invalid, and would have affirmed.
Dissent — Justice Butler
“I am of opinion that the judgment below should be affirmed.”Butler's conclusion that the conviction should have been upheld.
Justice Butler argued the record affirmatively showed the appellant was not convicted under the 'opposition to organized government' clause, because the trial court had also instructed the jury that peaceful advocacy of political change and adopting a flag for that purpose could not be made unlawful, closely tracking a prior California Supreme Court ruling. He argued the Court need not even reach the free-speech question and would have affirmed the conviction.
How the Court got there
The legal reasoning, step by step
- The Court noted the jury could convict on any one of three separate purposes named in the statute — opposing organized government, inciting anarchistic action, or aiding seditious propaganda — without specifying which one it relied on, so if any single clause was unconstitutional, the conviction could not stand.
- The Court accepted that free speech is protected against state interference through the liberty guaranteed by the Fourteenth Amendment's due process clause, and that this right is not absolute, since states may punish speech that incites violence or the violent overthrow of government.
- The Court found no problem with the clauses punishing incitement to anarchistic action or seditious propaganda, since California's courts had construed those clauses narrowly to cover only advocacy of force or violence.
- Turning to the 'opposition to organized government' clause, the Court found that California's own courts had acknowledged it could be read broadly enough to cover peaceful, lawful political opposition to whichever party held power, not just violent or unlawful conduct.
- Because a law that is so vague it could punish ordinary, peaceful political dissent threatens the basic democratic principle that people must be free to seek lawful change through open political debate, the Court held that clause unconstitutional on its face.
- Since the jury's general verdict might have rested solely on that invalid clause, the Court concluded the conviction could not be allowed to stand.
Doctrinal impact
Cases affected by this decision
Reaffirms Gitlow v. New York (268 U.S. 652)
Relied on as establishing that free speech is protected against state action under the Fourteenth Amendment.
Reaffirms Whitney v. California (274 U.S. 357)
Cited as confirming states may punish speech that incites violent overthrow of government.
Reaffirms Fiske v. Kansas (274 U.S. 380)
Cited alongside Gitlow and Whitney for the scope of protected liberty of speech.