Stromberg v. California

No. 584

Argued April 15, 1931

Decided May 18, 1931

283 U.S. 359

APPEAL FROM THE DISTRICT COURT OF APPEAL OF CALIFORNIA,

FOURTH APPELLATE DISTRICT

Syllabus



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.



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.   [283

U.S. 360]



3. The conception of "liberty " under the due process clause of the

Fourteenth Amendment embraces the right of free speech.



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.



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. HUGHES, J., lead opinion



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 [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 [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.  [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 [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 [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. [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 [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 [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, 666; Whitney v. California, 274 U.S. 357,

362, 371, 373; Fiske v. Kansas, 274 U.S. 380, 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 [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 [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. MCREYNOLDS, J., dissenting



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 [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. BUTLER, J., dissenting



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 [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, [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 [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 [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 [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, 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.

