In 1920, the state of North Dakota passed a law preventing anyone from displaying a red or black flag.

The Law

RED OR BLACK FLAGS.

AN ACT regulating the display of flags, ensigns, banners and standards within the State of North Dakota; making the display of said flags, ensigns, banners and standards a misdemeanor and providing a penalty therefor.

Provides that no flag other than the national flag, or a state flag, or the friendly flags of foreign nations, shall be carried in parade on any thoroughfare in the state, or exhibited in any public place, or on any vehicle, or building, or in any public manner.

Prohibits displaying in any parade or exhibition, in any public place or upon any vehicle or building, any red flag or black flag or banner, or ensign, having upon it any inscription opposed to the United States or State Government or the use of which would tend to occasion a breach of the public peace.

Makes the violation of the act a misdemeanor punishable by thirty days imprisonment or one hundred dollar fine, or both.

Be It Enacted by the People of the State of North Dakota:

§ 1. Carrying in Parade, or the Display of Certain Flags, Ensigns. Banners and Standards, Prohibited. No flag of any nation, state, county or territory other than the National flag or a State flag, or the flag of a friendly foreign nation, or the dependencies of such nations, shall be carried in parade on any public street or highway within the State of North Dakota or exhibited in any hall or public place, or displayed or exhibited on any vehicle, or on any building or premises, or in any other manner in public within the State.

§ 2. Red Or Black Flags, Etc., Prohibited.] No red or black flag, and no banner, ensign, or sign having upon it any inscription opposed or antagonistic to the existing Government of the United States, or of the State of North Dakota, or the use or display of which would tend to occasion a breach of the public peace, shall be carried or displayed in any parade, on any public street or highway in the State of North Dakota, or exhibited in any hall or public place or upon any vehicle or any building or premises or in any other manner in public within the State.

§ 3. Penalty.] Any person violating the provisions of this act shall be guilty of a misdemeanor, and upon conviction thereof, shall be punished by imprisonment in the county jail, not exceeding thirty days or by a fine of not exceeding One Hundred Dollars or by both such fine and imprisonment.

Approved June 30, 1920. 74,634 to 41,009.[1]

Purpose of the Law

This would, by modern standards, reflect a violation of the First Amendment rights of the flag-bearers, but in 1920s North Dakota displaying a red or black flag, with or without anti-American sentiments drawn upon it, was considered a threat to society and security of its citizens. The "red flag" was directed at any number of flags of the Socialist, Communist, or Bolshevist movements and the International Workers of the World, which were gaining ground among the farmers of North Dakota during the 1920s. According to Mayor Hylan of New York, New York, who banned the red flag in 1918, "The display of the red flag in our thoroughfares seems to be emblematic of unbridled license and an insignia for law hating and anarchy, as the black flag represents everything that is repulsive to ideals of civilization and the principles upon which our government is founded."[2]

Massachusetts had a similar law on the books in 1913, which was upheld in 1914 in the case Commonwealth v Karvonen, stating that the law "cannot be stricken down as unconstitutional unless [it] has no tendency" to endanger the public safety[3]. The decision further states, "The statute here in question cannot be said to interfere unreasonably with the liberty of the citizens, nor can it be adjudged to have no rational connection with the preservation of public safety."[4]. The decision has, thus, been used as defense against challenges to unpopular laws, emphasizing that a law cannot be stricken down simply because it infringes on a particular liberty if the unpopular law has an overall effect of protecting the public safety. Due to the Massachusetts law, Harvard changed their flag from a red background with a white H, to a white flag with a red H, to avoid criminal charges for displaying the university banner[5].

1919 saw passage of the law in several other states: Nebraska, which was upheld in the case of People v Burman[6]; Alabama[7]; Iowa[8]; California[9]; Montana[10]The focus at the time would appear to be May 1, 1919, a large Socialist holiday, at a time of the First Red Scare[11], and the various bombings and violent protests of that day would seem to have warranted the public's fear of anarchist provocation. During 1919, 24 states had passed anti-red flag laws, with an additional 8 states in 1920[12].

The knee-jerk anti-socialist reaction eventually fell by the wayside as time passed. An opponent to the Anti-Red Flag Law in North Dakota reportedly reflected that "the only animal that is afraid of a red flag has a fence around him"[13].

Previous challenges to the law had been upheld on the grounds that the law protected public safety, but a challenge from California changed the status quo. Stromberg V California proceeded to the US Supreme Court in 1931[14], arguing that the national socialist groups were a significant part in American politics and the law was violating their First Amendment rights to participate in the public forum. The Supreme Court deliberated, but avoided the relevance of the First Amendment. The response of the US Supreme Court overturned Stromberg's conviction on the grounds that anti-red flag laws violated the Fourteenth Amendment by ignoring the rights of due process for citizens, prohibiting a wide swath of expression with a vague target of limiting one group's ability to protest those in power. This was the first legal decision to cite the Fourteenth Amendment in support of First Amendment rights. California repealed their anti-red-flag law in 1933.