Stromberg v. California

In the Supreme Court, Stromberg's lawyers argued that the flag was a symbol of a legitimate political party which had received 50,000 votes in the last election. In prohibiting display of the flag, California was unconstitutionally preventing Stromberg and others from exercising their right to freedom of expression under the First Amendment. Displaying the flag was, her lawyers claimed, a form of symbolic speech. What is more, it was a form of symbolic political speech. Applying the test for prohibited speech developed by Justice Oliver Wendell Holmes in Schenck v. United States (1919), displaying the flag hardly represented a "clear and present danger."

Writing for the Court, Chief Justice Hughes largely sidestepped the First Amendment issues raised by Stromberg. Although the opinion of the seven-man majority followed the reasoning of the Holmes doctrine, Hughes used it to arrive at the conclusion that the California law was simply too vague to be constitutional:

The state court recognized the indefiniteness and ambiguity of the clause. The court considered that it might be construed as embracing conduct which the State could not constitutionally prohibit . . . 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 . . . is a fundamental principle of our constitutional system. A statute which upon its face . . . 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 Court overturned Stromberg's conviction. And two years later, California repealed its "red flag law." Although the outcome in Stromberg was not based on a free speech analysis, it is nonetheless a landmark in the history of First Amendment law. In this case, for the first time, the Supreme Court used the Fourteenth Amendment to protect citizens from state interference with free expression.