Stromberg V. California - Opinions - Justice Pierce Butler - Procedural Challenges

Procedural Challenges

The record does not show that the defendant separately challenged in the trial court the validity of the first clause.

The defendant’s counsel likewise failed to object to state’s instructions, and testified before the Court of Appeals that he was satisfied that the instructions were correct.

The Court of Appeals found the second and third provisions of section 403a of the California Penal Code to be in compliance with the state and federal Constitutions’ guarantees of freedom of speech. They did, however, state that the constitutionality of the first clause was “questionable,” taking particular issue with the phrase “of opposition to organized government.” The Court of Appeals suggested that this phrase could be eliminated from the section without introducing material changes to its purpose.

Justice Pierce argued that due consideration makes it clear that the defendant did not claim that the jury could have found her guilty of violating the first clause of the statute; that the Court of Appeals did not rule on the question of whether such a first-clause conviction would be constitutional; and lastly, that the validity of the first clause was mentioned in the concurring opinion only upon the question of whether the second and third clauses must be found invalid if the first clause was to be found unconstitutional.