Facts
- California Penal Code § 403a criminalized displaying a red flag in a public place or meeting place for any of three purposes: (1) as a symbol of opposition to organized government, (2) as an invitation or stimulus to anarchistic action, or (3) as aid to seditious propaganda.
- Yetta Stromberg, a 19-year-old member of the Young Communist League, supervised a children’s summer camp where a red flag was raised during a daily ceremony and children recited a pledge to the “worker’s red flag” and “freedom for the working class.”
- Stromberg was charged under § 403a; the charging document alleged all three purposes conjunctively.
- The trial court instructed the jury in the statute’s disjunctive form, permitting conviction if any one of the three purposes was proved.
- The jury returned a general verdict of guilty.
- Stromberg argued the statute violated the Fourteenth Amendment by restricting protected expression; the state appellate court affirmed, doubting the first clause’s validity but sustaining the statute at least as to the second and third clauses.
Issues
- Whether the Fourteenth Amendment’s Due Process Clause protects freedom of speech against state infringement.
- Whether § 403a’s first clause, prohibiting a red flag displayed as a symbol of opposition to organized government, is unconstitutional because it criminalizes peaceful political expression.
- Whether a general-verdict conviction may stand when the jury was allowed to convict on multiple grounds and at least one ground is unconstitutional, making it impossible to determine the basis for the verdict.
Decision
- The Supreme Court reversed the conviction.
- The Court held that freedom of speech is part of the “liberty” protected by the Fourteenth Amendment’s Due Process Clause.
- The Court held the first clause of § 403a unconstitutional because it could punish peaceful symbolic expression and lawful advocacy of change.
- Although the second and third clauses could be construed to reach incitement or seditious advocacy, the conviction could not be sustained because the jury might have relied on the unconstitutional first clause and the general verdict did not reveal the ground of conviction.
Legal Principles
- The Due Process Clause of the Fourteenth Amendment protects freedom of speech from state abridgment.
- A state may punish expression that tends to incite violence or crime or threatens unlawful overthrow of government, but it may not criminalize peaceful, lawful political opposition.
- When a jury returns a general verdict after being instructed it may convict on any of several statutory grounds, the conviction must be set aside if any ground submitted to the jury is unconstitutional and the verdict does not show which ground the jury adopted.
Conclusion
The Court invalidated California’s prohibition on displaying a red flag as a mere symbol of opposition to organized government and reversed Stromberg’s conviction because the general verdict could have rested on that unconstitutional basis.