# Stromberg v. California/Dissent Butler

Mr. Justice BUTLER, dissenting.
The Court decides that, in so far as section 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 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 convictionrest § 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 P. 548. Under that decision the California lower courts were bound to hold invalid the first clause of section 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, 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 P. 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 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 (page 95 of 290 P.): 'The part of section 403a necessary to be considered in passing upon the questions raised by the appeal reads as fllow s: '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.
Those 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. Pages 96-102 of 290 P. The first clause was discussed in the concurring opinion only for the purpose of showing 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 (page 97 of 290 P.): '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 9 of 290 P.): '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 (page 99 of 290 P.) 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 (page 99 of 290 P.): '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 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 constitutinal 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, 42 S.C.t. 516, 66 L. Ed. 1044, 27 A. L. R. 27; Gitlow v. New York, 268 U.S. 652, 666, 45 S.C.t. 625, 69 L. Ed. 1138; Whitney v. California, 274 U.S. 357, 47 S.C.t. 641, 71 L. Ed. 1095; Fiske v. Kansas, 274 U.S. 380, 47 S.C.t. 655, 71 L. Ed. 1108.
I am of opinion that the judgment below should be affirmed.