Stromberg v. California/Dissent McReynolds

Separate opinion of Mr. Justice McREYNOLDS.

This Court often has announced, and scores, perhaps hundreds of times has applied the rule, that it may not pass upon any question in a cause coming from a state court which the record fails to show was there determined or duly presented for determination.

The only federal matter ruled upon by the court below (District Court of Appeals), and the only one there submitted, arose upon the general demurrer to the information. Did this adequately set forth an offense for which the defendant could be punished without violating the Fourteenth Amendment?

Section 403a, Penal Code of California, provides: 'Any person who 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 from 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.' And the information charged that the plaintiff 'did wilfully, unlawfully, and feloniously display a red flag and banner in a public place and a meeting place as a sign, symbol, and an emblem of opposition to organized government and as an invitation and stimulus to anarchistic action and as an aid to propaganda that is and was of a seditious character.'

Below, counsel definitely 'stated that he was satisfied that the instructions (to the jury) were correct, and waived any claim of error on that account.' Accordingly, decision was not requested upon any question arising out of the charge; no such question was decided. The instructions were properly disregarded and are now unimportant.

The sole matter of a federal nature considered by the Court of Appeals was the claim that the provisions of Section 403a of the Penal Code were in conflict with the Fourteenth Amendment. It held the statute divisible and that as petitioner stood charged with violating all of the inhibitions therein, some of which were certainly good, the conviction could not be upset even if one paragraph were invalid. The conclusion seems plainly right and, I think, the challenged judgment should be affirmed.