Caseflicks

Supreme Court of the United States • 1931

Stromberg v. California

283 U.S. 359 | 51 S. Ct. 532 | 75 L. Ed. 1117 | 1931 U.S. LEXIS 152 | 73 A.L.R. 1484

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Takeaway

In short, this case established that a conviction based on a general verdict cannot stand when the jury may have relied on an unconstitutional restriction of peaceful political expression.

Background

Yetta Stromberg, a nineteen-year-old member of the Young Communist League, supervised a summer camp for children in California. Each day, she led the children in raising a camp-made red flag modeled on the Soviet and Communist Party flag and in reciting a pledge to the workers' red flag and “freedom for the working class.” Although the camp library contained radical Communist literature advocating violence and armed uprising, the stipulated facts showed that none of that material was used in instruction and that Stromberg used no words of violence, anarchism, or sedition in teaching.

California Penal Code § 403-a made it a felony publicly to display a flag or similar device either as an emblem of opposition to organized government, as an invitation or stimulus to anarchistic action, or as an aid to seditious propaganda. Stromberg was charged conjunctively under all three grounds, but the jury was instructed that it could convict if it found any one ground beyond a reasonable doubt. The jury returned a general guilty verdict.

The California District Court of Appeal affirmed. It treated the statute's clauses as separable, expressed doubt about the constitutionality of the “opposition to organized government” clause, and upheld the conviction on the view that the clauses concerning anarchistic action and seditious propaganda were valid. The Supreme Court reversed.

Issues

Issue #1

Whether a general verdict may stand when the jury was authorized to convict under any of several statutory grounds and one of those grounds is unconstitutional.

Holding

No. Because the general verdict may have rested solely on the unconstitutional ground, the conviction could not be sustained.

Reasoning

The charging document alleged all three prohibited purposes, but the trial court instructed the jury in the disjunctive: it could find Stromberg guilty if the flag was displayed for any one of the three purposes. The verdict did not identify which ground the jury accepted.

The California appellate court treated the statute as divisible and reasoned that the conviction could survive because the clauses addressing anarchistic action and seditious propaganda were valid. The Supreme Court rejected that approach. Separability of statutory provisions does not cure a conviction when the jury may have relied on an invalid provision.

The uncertainty was consequential rather than theoretical. The trial record showed that the prosecutor specifically urged the jury that it could convict under the first clause alone. Since the Court could not determine that the verdict rested on a valid clause, the conviction had to be set aside if the first clause was unconstitutional.

Issue #2

Whether California could constitutionally punish the public display of a flag merely as a sign, symbol, or emblem of opposition to organized government.

Holding

No. As construed by the California court, that clause was unconstitutionally vague and broad because it could punish peaceful, lawful political opposition.

Reasoning

The Fourteenth Amendment's protection of liberty includes freedom of speech. Although a state may punish speech that incites violence, crime, or the unlawful overthrow of government, it may not punish protected political advocacy merely because it expresses opposition to the existing government.

The California court itself recognized that “opposition to organized government” could encompass peaceful and orderly opposition to a government controlled by a particular political party, as well as advocacy of lawful constitutional change. Its construction therefore left the clause broad enough to criminalize protected political expression.

Free political discussion is essential to a republican system because it enables government to respond to public will and allows change through lawful means rather than revolution. A criminal provision that is vague and indefinite enough to punish the fair exercise of that freedom violates the Fourteenth Amendment.

The Court did not question, on their face, the clauses as the state court had construed them to reach incitement to violent anarchistic action or advocacy of violent overthrow. Nor did it decide whether those clauses were unconstitutional as applied to Stromberg's particular conduct, because invalidity of the first clause and the general verdict already required reversal.

Dissents

Justice McReynolds

Reasoning

Justice McReynolds maintained that the Court should not decide a federal question unless the record showed that the state court actually decided it or that it was properly presented for decision. In his view, the only federal issue presented below was whether the information, which charged Stromberg with all three prohibited purposes conjunctively, stated an offense consistent with the Fourteenth Amendment.

He emphasized that Stromberg accepted the jury instructions and waived any claim of instructional error. Thus, he thought the instructions allowing conviction on any one clause were not properly before the Supreme Court and should not be used to invalidate the judgment.

Because the California court held the statute divisible and because the information charged conduct prohibited by clauses that were plainly valid, Justice McReynolds would have affirmed the conviction even if the first clause were invalid.

Justice Butler

Reasoning

Justice Butler argued that the record affirmatively showed Stromberg was not convicted for peaceful opposition to organized government. He stressed that the jury also received instructions, requested by Stromberg, expressly stating that people and organizations may advocate peaceful changes to the Constitution, laws, or form of government and may display an emblem representing that peaceful advocacy.

Read together, Justice Butler believed those instructions eliminated any possibility that the jury would convict Stromberg merely for displaying a flag as an emblem of peaceable opposition. Her failure to object to the prosecution's instruction, coupled with her later statement that the instructions were correct, confirmed that understanding.

He further read the California appellate opinions as treating the first clause only in deciding whether it could be severed from the statute, not as a basis for sustaining Stromberg's conviction. Since the state court rested on the valid clauses concerning anarchistic action and seditious propaganda, he would have affirmed without deciding whether flag display alone is protected speech or whether the first clause violated the Fourteenth Amendment.