Using words to express opposition to the American government is generally accepted, but what about symbols or emblems? Does the right to free speech include a right to express views and communicate ideas via means other than literal speech? The Supreme Court was asked to decide this in the case of Stromberg v. California and they ruled that use of a flag to communicate ideas was, indeed, covered by the Constitution’s protections for free speech.
Stromberg v. California: Background
It was once common for state and local governments to regulate people’s speech; not until 1925 did the Supreme Court begin applying First Amendment restrictions to them. California law, for example, made it a felony if anyone:
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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 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.
Stromberg, a female member of the Young Communist League, supervised a children's camp where a red flag was raised in a daily ceremony. The children saluted the flag and pledged allegiance “to the workers’ red flag, and to the cause for which it stands, one aim throughout our lives, freedom for the working class.” Stromberg was arrested, tried, and convicted. An appeals court upheld her conviction, so she appealed to the Supreme Court.
Stromberg v. California: Decision
The Supreme Court reversed Stromberg’s conviction. This was considered a problematic case because the jury was instructed to convict if they found the defendant guilty on any one of three possible counts and there was no record of which of them was the deciding factor. Thus, if any of the clauses were found to be invalid, then the conviction would have to be overturned in order to ensure that justice was done.
This contradicted the state court decision that if any of the counts were valid, then the conviction was also valid. The state court gave the benefit of the doubt to the prosecution; the Supreme Court gave the benefit of the doubt to the defendant.
However, the trial record did show that the prosecutor focused foremost on the first count — that Stromberg should be convicted if she were found to have displayed the red flag as an “emblem of opposition to organized government.” This is what the Supreme Court chose to focus on: can state governments ban the use of certain symbols, signs, or emblems which express a message of opposition to organized government?
In the majority decision, Chief Justice Hughes noted that even the state court recognized that this clause was ambiguous and could be used against patriotic people of one political party engaged in peaceful, legal opposition to a government controlled by another political party. That, however, would impinge upon political debate:
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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 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.
The Supreme Court accepted the authority of governments to prevent armed insurrection, but did not accept that preserving the peace could be legitimately achieved at the expense of suppressing views, ideas, and arguments which opposed the current government — including those ideas expressed in a non-verbal manner.
Stromberg v. California: Significance
Free speech rights had long been recognized as covering both spoken and printed words, but in this decision the Supreme Court made it clear that the right to free speech wasn’t meaningful if it only covered literal words. Instead, the First Amendment must be read as covering the communication of ideas or messages generally. Therefore, emblems, symbols, and other non-verbal expressions of ideas should also be granted protection as a form of “speech.” This was one of the first Supreme Court cases dealing with abridgements of free speech at the state level — it was only in 1925, with the Gitlow v. New York case, that they had ruled that the First Amemndment covers state as well as federal actions.
