Facts of the Case
Yetta Stromberg was charged with violating a California law prohibiting displaying a red flag in a public meeting place after displaying a red flag daily at a children’s camp in the San Bernardino Mountains. The youth camp for working-class children was maintained by a number of different groups and organizations, some of which were either openly Communist or had expressed sympathy for the Communist Party's goals. The law prohibited displaying such a flag for any of three reasons: (1) “as a sign, symbol, or emblem of opposition to organized government”; (2) “as an invitation or stimulus to anarchistic action”; or (3) “as an aid to propaganda that is of a seditious character”. Stromberg argued that the law violated the First Amendment as applied to the states by the Fourteenth Amendment. The judge overruled the objection and a jury convicted Stromberg. The District Court of Appeal affirmed the conviction.
Did a state law prohibitng people from flying red flags as a political statement violate the First Amendment?
Writing for a 7-2 majority, Chief Justice Charles E. Hughes reversed the conviction because the first reason for prohibiting display of a red flag—“as a sign, symbol, or emblem of opposition to organized government”—was unconstitutional. The Court reasoned that where the jury convicted a defendant generally under any or all of the three reasons, and one of those reasons is struck down, the conviction cannot stand. The Court upheld the second two reasons—“as an invitation or stimulus to anarchistic action” or “as an aid to propaganda that is of a seditious character”—because they protected against incitement to violence. Justice James C. McReynolds dissented, writing that Stromberg’s conviction should stand because the jury convicted her under valid parts of the California law as well. Justice Pierce Butler wrote a separate dissent, writing that the records shows that Stromberg was not convicted under the unconstitutional reason at all, so the conviction should stand.