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570 UN-AMERICAN ACTIVITIES IN CALIFORNIA UN-AMERICAN ACTIVITIES 1 issue or knowingly circulate, sell, distribute or publicly display any book, paper, document or written or printed matter in any form containing or advocating, advising or teaching such a doctrine; or to organize or help ‘ organize or become a member of or voluntarily assemble with a group of | persons found to teach or advocate such a doctrine. The New York act was upheld by the Supreme Gaunt in Gitlew ¥. New York, 268 U.S, 652, decided in 1925, where the defendant was found to be responsible for a manifesto advocating overthrow of the government by viclence and unlawful means. { _ The court im the Gitlow case did not apply ihe ‘‘clear and present 1 danger’’ standard, holding that the test applied only to actions of the class involving the Espionage Act. The court held the eriminal anarchy | statute in question valid, observing that a state, in the exercise of its police power, may punish those who abuse the freedom of speech by utter. ances inimical to the public welfare, tending to corrupt public morals and inciting to crime. The court recognized the legislative determination of the danger of substantive evil arising from utterances of a specified | character. Justice Holmes dissented to the majority opinion, adhering ts the ‘‘clear and present danger’’ test, which, if applied, might have rendered the statute unconstitutional. The Gtilow case has not been overruled. However, later decisions tend _ to indicate that the ‘‘clear and present danger’’ standard applies to all state legislative action that encroaches upon the liberties guarantecd by 4 the Bill of Rights. We cannot say with assurance that this standard does not now apply to such statutes as the New York Anarchy Act. ' We are not aware of any California statute that expressly prohibits j criminal anarchy. However, that offense would appear to fall within the | scope of the criminal syndicalism laws of California, discussed below. b. Dispiay of Emblems of Opposition to Government. Section 616 of the California Military and Veterans Code prohibits the display of any flag, banner or badge in any public place or in any meeting place oF public assembly or on or from any house, building or window, as a sign. symbol or emblem of ‘‘forceful or viclent’’ opposition to organized go’ ernment, or stimulus to anarchistic action, or aid to propaganda advocat- ing overthrow of government by force. (For text, see Appendix.) That § section, enacted in 1935, is based upon former Section 403a of the Cali- fornia Penal Code one of the clauses of which (prohibiting the display of a flag ‘‘as a sign, symbol or emblem of opposition to organized gover ment’’}) had been held unconstitutional in Stromberg v. Calaforni (1931), 283 U. 8. 359. In the Siromberg case the defendant, a member of an organization affliated with the Communist Party, was supervising a Youth Camp 1! San Bernardino, Each day she directed a ceremony at which a camp-made reproduction of the flag of Soviet Russia was raised while the children saluted and pledged allegiance to the flag ‘‘and to the cause for which u stands, one aim throughout our lives, freedom for the working clas. dhe Supreme Court held the clause in question was void for vaguen®™ | and indefiniteness, stating that its terms might include peaceful and orderly opposition to a government, organized and controlled by a polit! 4 cal party, as well as a Communist organization. . The present section was re-enacted, limiting the prohibition of tht clause to ‘‘forceful or violent’’ opposition to organized government, 1 wiform with the law established in the St? aitutionality of the present section has ne ce. Criminal Syndicalism. Criminal yvocaey of industrial or political change t ce and violence or unlawful methods ‘ vatute prohibiting criminal syndicalism | eering’s California General Laws, Act 8: tlich was upheld by the Supreme Court in 74 U. 8. 357, when it affirmed the conv uly and actively participated as an or¢ ‘the Communist Labor Party of Califo ary to have been organized to advocat wndicalism as defined by that statute. Tt should be noted that in DeJonge v. ‘he Oregon criminal syndicalism statute nakes it a erime to preside at, conduct, ¢ neeting of an organization or group whic xndiealism or sabotage) was held uncon: he particular set of facts presented by The defendant had been a speaker at wred by the Communist Party. The meet «rpose of protesting the activities of t trike by the coast longshoremen. It was advocacy of criminal syndicalism or any U The court held that, notwithstandin, nist Party, the defendant still enjoyed h ‘utake part in peaceful assembly. Portio: the court in the DeJonge case appear to | diseussion. The court stated : “# © * His sole offense as charged, and tnced to imprisonment for seven years, was the sublic meeting, albeit otherwise lawful, which ‘ommunist Party.” (p. 362.) “The broad reach of the statute as thus ap member of the Communist Party, that member ‘a such a charge. A like fate might have attend ‘er, who ‘gssisted in the conduct’ of the meeting: meeting, however lawful the subjects and tenor ind timely the discussion, all those assisting in ‘uhject to imprisonment as felons if the me Marty * © *" (p. 362.) . “While the states are entitled to protec privileges of our institutions through an attemy ‘1 the place of peaceful political action in orc tovernment, none of our decisions go to the le af the right of free speech and assembly aa the ‘pplication. * © *" (p. 363.) ; “ft follows from these considerations the ttitution, peaceable assembly for lawful discu lf the persons assembling have committed eri ire engaged in a conspiracy against the public p for their conspiracy or other violation of valid | the atate, instead of prosecuting them for such ‘ in & peaceable assembly and a jawful public | tharge.” {p. 365.)