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S, Stromberg v. California,

Edited By: Kermit L. Hall, James W. Ely Jr., Joel B. Grossman

From: The Oxford Companion to the Supreme Court of the United States (2nd Edition)

Edited By: Kermit L. Hall

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved. Subscriber: null; date: 07 June 2023

Stromberg v. California,

283 U.S. 359 (1931), argued 15 April 1931, decided 18 May 1931 by vote of 7 to 2; Hughes for the Court, Butler and McReynolds in dissent. Yetta Stromberg’s summer job teaching at a youth camp for working-class children in rural California led to a court challenge of the previously unenforced 1919 state law that prohibited public use or display of a red flag. The legislature had determined that the presence of red fabric demonstrated opposition to organized government and invited anarchy and sedition.

During the summer of 1929, the Pioneer Summer Camp, maintained by a conference of organizations, some of them communist in ideology, became the target of the Better American Federation (BAF), a group determined to rid California of “dangerous” dissent. The BAF convinced the San Bernardino County sheriff to search the camp, where his men discovered the red flag and arrested Stromberg and other staff members.

After Stromberg’s conviction she appealed to the Supreme Court where her attorneys argued that the California statutes prohibited a symbol of a legally constituted party that had received fifty thousand votes in the previous election. Stromberg’s lawyers based much of their argument on Justice Oliver Wendell *Holmes’s *clear and present danger test that maintained that the circumstances of the act must be considered in testing the law.

Seven members of the Court voted to overturn Stromberg’s conviction. In the majority opinion Chief Justice Charles Evans *Hughes followed the reasoning of the Holmes doctrine and concluded that the red flag ban was too vague and could be used to interfere with constitutionally based political and partisan opposition to those in power. Therefore, the majority declared the California Red Flag Law unconstitutional because it violated the liberty protected by the *Fourteenth Amendment. The legislature repealed the statute in 1933.

Hughes’s Stromberg opinion is considered a milestone in First Amendment constitutional law, for it was the first ruling in which a Court majority extended the Fourteenth Amendment to include a protection of First Amendment substance—in this case *symbolic speech—from state encroachment.

See also first amendment; speech and the press.

Carol E. Jenson