BILL ANALYSIS Ó
AB 2444
Page 1
ASSEMBLY THIRD READING
AB 2444 (Hall)
As Amended April 10, 2014
Majority vote
JUDICIARY 10-0 APPROPRIATIONS 16-1
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|Ayes:|Wieckowski, Wagner, |Ayes:|Gatto, Bigelow, |
| |Alejo, Chau, Dickinson, | |Bocanegra, Bradford, Ian |
| |Garcia, Gorell, | |Calderon, Campos, Eggman, |
| |Maienschein, Muratsuchi, | |Gomez, Holden, Jones, |
| |Stone | |Linder, Pan, Quirk, |
| | | |Ridley-Thomas, Wagner, |
| | | |Weber |
| | | | |
|-----+--------------------------+-----+--------------------------|
| | |Nays:|Donnelly |
| | | | |
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SUMMARY : Prohibits the State of California from selling or
displaying the Battle Flag of the Confederacy, or images
thereof, except as specified. Specifically, this bill :
1)Prohibits the State of California from selling or displaying
the Battle Flag of the Confederacy, or any similar image, or
any tangible personal property inscribed with such an image,
unless the image appears in a book for educational or
historical purposes.
2)Defines "sell" to mean to transfer title or possession,
exchange, or barter, conditional or otherwise, in any manner
or by any means whatsoever, for consideration.
EXISTING LAW provides that no law shall abridge freedom of
speech, and guarantees every person the right to freely speak,
write, and publish his or her sentiments on all subjects, being
responsible for the abuse of those rights.
FISCAL EFFECT : According to the Assembly Appropriations
Committee, negligible fiscal impact.
COMMENTS : This bill reportedly originated with the author's
dismaying discovery that a gift shop in the State Capitol
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Building sold confederate currency which contained, among other
things, an image of the Confederate flag. According to the
author, the Confederate flag is a, "Symbol of racism, exclusion,
oppression, and violence toward many Americans," and its history
is directly related to the defense of slavery, whereas
California was admitted as a "free state" and its history is
directly linked to the expansion of liberty and equal protection
for all. This bill, therefore, prohibits the State of
California from selling or displaying the Confederate flag or
any item that contains an image of the Confederate flag, unless
the image appears in a book for strictly historical or
educational purposes.
The courts have regularly held that the "Confederate flag
conveys political, ideological, cultural, or other messages
protected by the First Amendment." (Defoe v. Spiva (2010) 625
F. 3d 324, 332.) Constitutionally, it does not matter whether
one sees the Confederate flag as a symbol of racism and slavery
or "states' rights." Whatever political, ideological or
cultural belief one attaches to the Confederate flag - or more
accurately the Battle Flag of the Confederacy - the First
Amendment has long been held to protect one's right to express
it. Nor does it matter, constitutionally, that some find the
flag offensive; indeed, the First Amendment is almost always
invoked to protect speech that someone finds offensive, since as
a general rule no one seeks to repress inoffensive speech. Any
law that restricts the expression of symbolic speech, solely
because the government disagrees with the content of that speech
or the message that it conveys, is deemed to be a
"content-based" restriction and is subject to the most exacting
scrutiny by the courts. (Police Department of Chicago v. Mosely
(1972) 408 U.S. 92, 95-96.) A law that singles out the
Confederate flag would most likely be considered by the courts
not only content-based discrimination, but "viewpoint
discrimination," which the U.S. Supreme Court has described as
the most "egregious form of content discrimination."
(Rosenberger v. Rector & Visitors of the University of Virginia
(1995) 515 U.S. 819, 825.) That a law or regulation only
restricts the "sale" of expressive items does not make the law
or regulation any more palatable constitutionally; as the U.S.
Court of Appeal for the Ninth Circuit has held, messages "do not
lose their constitutional protection simply because they are
sold rather than given away." (Perry v. Los Angeles Police Dept.
(1997) 121 F. 3d 1365, 1368.)
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Perhaps the most important threshold question in beginning any
First Amendment analysis is to ask whether the restricted speech
is "content-based" or "content-neutral." Content-based
restrictions are "presumptively invalid." (R.A.V. v. City of
St. Paul (1992) 505 U.S. 377, 382.) "Content-based"
restrictions can either prohibit speech because of its
"viewpoint" or because of its "subject matter." For example, a
law that prohibited any discussion of abortion would be a
content-based restriction based on subject matter. A law that
prohibited only speech that was "pro-life" would be a
content-based restriction based on a particular viewpoint. As
noted above, viewpoint discrimination is deemed to be the worst
form of content-based restriction and only rarely passes
constitutional muster. For a regulation to be
"content-neutral," the regulation must be done for a purpose
completely unrelated to the content of the speech, even though
it may incidentally restrict expressive speech. For example, a
regulation that sought to prohibit excessively loud music in a
park is content-neutral even if it is used against someone who
is expressing a specific political message. (Ward v. Rock
Against Racism (1989) 491 U.S. 781; see also Erwin Chemerinsky,
Constitutional Law (2006, 3d Ed.) 932-941.) Thus restrictions
on the selling of a Confederate flag would, at the very least,
be found to be a content-based restriction, and would most
likely be deemed a form of viewpoint discrimination that rarely
passes the test of constitutionality.
While restricting private persons from selling or displaying
Confederate flags on government property - insofar as the state
otherwise permitted the sale or display of similar items on that
property - would likely be a form of viewpoint discrimination,
this bill would only prevent the state from selling or
displaying the Confederate flag or images thereof. This
approach appears to be consistent with cases such as Sons of
Confederate Veterans v. City of Lexington, Virginia (2013) 722
F. 3d 224, 227. In that case, in 2010, the Sons of Confederate
Veterans (SCV) requested permission from the Lexington
(Virginia) City Council to use flag standards affixed to light
poles during a "Lee-Jackson Day" parade honoring Robert E. Lee
and Stonewall Jackson. The City of Lexington had previously
permitted other private groups - including a private college and
college fraternities - to use the standards to fly their
respective school flags and banners. Although the City of
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Lexington granted the request to SCV on this occasion, at its
subsequent city council meeting it enacted an ordinance
declaring that city flag standards could only be used to display
the flag of the United States, the flag of the Virginia
Commonwealth, or the flag of the City of Lexington.
SCV filed an action alleging that the ordinance violated, among
other things, the First Amendment. The court held that the flag
standards were only a "designated public forum," meaning they
were government property open to private speech only so long,
and to the extent that, the government permitted it. Once a
forum has been designated a public forum and made open to
speakers, the government cannot chose between speakers based on
the content of their speech. However, the court ruled, just as
a government can open a designated public forum, it can also
close a designated public forum. Once the flag standards were
no longer a designated public forum, the government was free to
decide that the flag standards could only be used for the
official flags of the U.S., Virginia, and Lexington. The City
of Lexington was "free to reserve its equipment purely for
government speech," and apparently the government no longer
chose to speak the anachronistic language of the Confederacy.
(Id. at 232.) The City of Lexington case - and the case law
upon which it relied - certainly suggests that a government, as
a speaker, is free to choose what kinds of messages it wants to
communicate and what kinds of messages it does not want to
communicate
The California National Association for the Advancement of
Colored People (NAACP) supports this bill because "the
Confederate flag is a symbol of racism, exclusion, oppression,
and violence towards many Americans and particularly African
Americans. Its symbolism and history is directly linked to the
enslavement, torture and murder of millions of African Americans
through the mid-19th century. Its public display usually is an
intentional display of racial hatred designed to instill fear,
intimidation and a direct threat of violence towards others."
The California NAACP concludes that "AB 2444 is smart public
policy and a simple expression of California's strong compelling
interest in promoting racial harmony and sending a strong
message that California will not tolerate marketing hatred
toward others in any taxpayer supported state facility."
There is no opposition on file.
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Analysis Prepared by : Thomas Clark / JUD. / (916) 319-2334
FN: 0003259