Pierce Butler

“ It seems to me that on this record the Court is not called on to decide whether the mere display of a flag as the emblem of a purpose, whatever its sort, is speech within the meaning of the constitutinal protection of speech and press or to decide whether such freedom is a part of the liberty protected by the Fourteenth Amendment or whether the anarchy that is certain to follow a successful 'opposition to organized government' is not a sufficient reason to hold that all activities to that end are outside the 'liberty' so protected. ”

“ They are not in any manner negatived or impaired by the concurring opinion of two of the judges. Pages 96-102 of 290 P. The first clause was discussed in the concurring opinion only for the purpose of showing that, notwithstanding its questionable validity, the rest of the section should be held valid. ”

“ And, if defendant at the trial did assail the first clause, that contention is shown by the opinion of the court below to have been definitely waived.
It is there stated that (page 95 of 290 P.) : 'The part of section 403a necessary to be considered in passing upon the questions raised by the appeal reads as fllow s: 'Any person who displays a red flag, * * * in any meeting place * * * as an aid to propaganda that is of a seditious character is guilty of a felony. ”