BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2013-2014 Regular Session
AB 2444 (Hall)
As Amended May 23, 2014
Hearing Date: June 24, 2014
Fiscal: Yes
Urgency: No
RD
SUBJECT
Confederate Flag: Sales: Government Property
DESCRIPTION
This bill would prohibit the State of California from selling or
displaying the Battle Flag of the Confederacy or its image, as
specified, unless the image appears in a book or digital medium
that serves an educational or historical purpose.
BACKGROUND
The Confederate flag, in its different variations (the first of
which was called "Stars and Bars"), served as the official flag
of the Confederate States of America from 1861 to 1865. The
most commonly recognized "Confederate flag" today is actually a
battle flag under General Lee, and is also known as "the rebel
flag," "Dixie flag," and "Southern cross." Throughout the 20th
century and into the 21st, the topic of displaying the
Confederate flag has engendered much controversy, particularly
in the south where it symbolizes southern pride to some portion
of the population, but also symbolizes the nation's history of
racism and bigotry for many others. For example, in 2000, South
Carolina passed a bill to remove to remove the Confederate flag
from the top of the State House dome which had been placed there
since the early 1960s by an all-white South Carolina
Legislature, though the flag was thereafter moved to the north
end of the state house as part of a compromise, where protests
have re-ensued to have the flag removed from there as well.
(See Adam Beam, SC marchers demand removal of Confederate battle
flag (Jan. 20, 2014),
[as of May 25, 2014].)
Although the ability of the government to curb racism in the
speech and non-violent expression of individuals is vastly
limited by the First Amendment, the U.S. Supreme Court has held
that the amendment does not hinder the power of the state to
regulate its own speech.
Accordingly, this bill seeks to prohibit the State of California
from selling or displaying the Battle of the Confederacy or its
image, as specified, unless the image appears in a book or
digital medium that serves an educational or historical purpose.
CHANGES TO EXISTING LAW
Existing federal law , the U.S. Constitution, provides that
Congress shall make no law abridging the freedom of speech, or
of the press, or the right of the people peaceably to assemble,
and to petition the government for a redress of grievances.
(U.S. Const., 1st Amend., as applied to the states through the
14th Amendment's Due Process Clause; see Gitlow v. New York
(1925) 268 U.S. 652.)
Existing law , the California Constitution, provides the right of
every person to freely speak, write and publish his or her
sentiments on all subjects, being responsible for the abuse of
this right. Existing law prohibits a law from restraining or
abridging liberty of speech or press. (Cal. Const. art. 1, Sec.
2(a).)
This bill would prohibit the State of California from selling or
displaying the Battle Flag of the Confederacy, also referred to
as the Stars and Bars, or any similar image, or tangible
personal property, inscribed with such an image unless the image
appears in a book or digital medium that serves an educational
or historical purpose.
This bill would define "sell" for these purposes to mean
transfer of title or possession, exchange, or barter,
conditional or otherwise in any manner or by any means
whatsoever, for consideration. This bill further defines
"transfer possession" to include only transactions that would be
found by the State Board of Equalization, for purposes of the
Sales and Use Tax Law, to be in lieu of transfer of title,
exchange, or barter.
AB 2444 (Hall)
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COMMENT
1. Stated need for the bill
According to the author:
The Confederate flag is a symbol of racism, exclusion,
oppression and violence towards many Americans. Its symbolism
and history is directly linked to the enslavement, torture and
murder of millions of Americans through the mid-19th Century.
Even today, its public display is designed to instill fear,
intimidation and a direct threat of violence towards others.
The State of California should not be in the business of
promoting racism, exclusion, oppression or violence and that
it should not allow taxpayer resources to be used to market
hate towards others.
AB 2444 prohibits the State of California from selling or
displaying the Confederate flag or similar images and items
bearing this image.
In support of the bill, numerous proponents comment that
"California was admitted to the United States of America in 1850
as a 'free state.' Its history is directly linked to the
expansion of liberty and equal protection of all people. Yet
this symbol of violence continues to be used as a means for
profit at various public venues across the state."
2. This bill does not appear to affect the First Amendment
rights of private persons or entities
As noted in the Background, the Confederate flag serves as a
constant reminder to many people of racism and bigotry in
America that has plagued the nation throughout its entire
existence, not just during the Civil War when the flag was
created to represent the Confederate States of America. Even in
2014, nearly 150 years after the ratification of the 13th
Amendment abolished slavery in the United States, many people
would argue that race issues and issues of discrimination
persist throughout the nation.
That being said, however offensive the message may be, the
displaying and the selling of the Confederate flag is largely
protected by the First Amendment, at least insofar as any
legislation would target the speech of private individuals or
AB 2444 (Hall)
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entities. Notably, however, this bill does not target the
private sector; rather, it only limits the ability of the State
of California to sell or display the flag outside of certain
historical or educational contexts. The U.S. Supreme Court has
very clearly stated that "the Government's own speech . . . is
exempt from First Amendment scrutiny. (Johanns v. Livestock
Marketing Ass'n (2005) 544 U.S. 550, 553.)
In a recent case, Sons of Confederate Veterans, Virginia
Division (SCV) v. City of Lexington, Virginia (2013), 722 F.3d
244, a federal court of appeal upheld a local ordinance that had
the effect of closing a designated public forum (flag poles) to
all private speakers. Of import to that case, the court
followed Supreme Court jurisprudence with respect to the right
to use government property for one's private expression. The
right of private citizens to use government property to engage
in speech depends upon the nature of the property-whether it is
a public forum, designated public forum, or a nonpublic forum.
Public forums have been defined by the U.S. Supreme Court as
places which by long tradition or by government fiat have been
devoted to assembly and debate - such as public parks or
sidewalks - and are thereby subject to stringent First Amendment
protection and strict scrutiny (which requires that the
proponents of the restriction show that its regulation is
necessary to serve a compelling state interest and that it is
narrowly drawn to achieve that end). Government property may
also be classified as a "nonpublic forum" which is property that
is not by tradition or designation a forum for public
communication - such as an airport or election polling place.
These forums are entitled to less protection from governmental
restriction than a public forum or designated public forum, and
a regulation of speech in a nonpublic forum will be upheld if it
is reasonable and not an effort to suppress expression merely
because public officials oppose the speaker's view. The third
type of forum, a designated public forum, is a nonpublic
government site that has been made public and generally
accessible to all speakers. A designated public forum - such as
a university meeting hall - may be made available for use by the
public at large for assembly and speech, for use by certain
speakers, or for the discussion of certain subjects (as long as
the limitation on subjects is viewpoint neutral). The Supreme
Court has also recognized, however, that a state is not
required, however, to indefinitely retain the open character of
a designated public forum. As long as the state keeps a
designated public forum open, however, it is bound by the same
standards as apply in a traditional public forum.
AB 2444 (Hall)
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In SCV v. City of Lexington, a city ordinance was passed that
restricted any future use of the City-owned flag standards to
three flags only: the flags of the United States, the
Commonwealth of Virginia, or the City of Lexington. The
ordinance also very specifically stated, however, that
"[n]othing set forth herein is intended in any way to prohibit
or curtail individuals from carrying flags in public and/or
displaying them on private property." (Id. at 226-227.) SCV
sued the city but the court of appeal upheld the district court
ruling that the ordinance was reasonable. As emphasized by the
district court, "[t]he Constitution does not compel a
municipality to provide its citizens a bully pulpit, but rather
requires it to refrain from using its own position of authority
to infringe speech." There, the court recognized that there
were compelling and practical reasons for the city to close its
flags standards to the public, such as the possibility of the
city being forced to hoist messages with which it would rather
not associate, and the potential for private expression to
subsume the intended official purpose of flag standards. (Id at
228.) The city not only argued that the city-owned flag
standards constitute government speech that is not subject to
any first amendment expression, but also that the city-owned
flag standards are nonpublic forums. In that context, the city
argued its ordinance met the requirement that it be reasonable
and viewpoint neutral. Declaring it a form of a designated
public forum, the court of appeal found that the city did not
exclude either a specific speaker or a specific class of speech,
but closed a designated public forum by disallowing all private
expression from its flag standards, as permitted under Supreme
Court precedent. (Id. at 230-231, internal citations omitted.)
This bill does not specifically affect the right of citizens to
carry or display the flag on private property, nor does it
specifically affect the right of citizens on government
property. It appears only to affect the right of the State to
sell or display the flag when it is not contained within books
or digital media for education or historical purposes. As the
prohibition only applies to the states and the Supreme Court has
held that the government speech is exempt from First Amendment
scrutiny, this bill would appear to not run afoul of the First
Amendment.
3. Content based-restrictions
The U.S. Supreme Court has frequently made clear that at the
AB 2444 (Hall)
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very core of the First Amendment is the principle that the
government may not regulate speech based on its content, and
that content-based restrictions are presumptively invalid. (See
RAV v. City of St. Paul (1992) 505 U.S. 377, 382.) The concern
here is that government will target particular messages it does
not agree with. Especially where the government attempts to
regulate speech in public places, the law must be subject matter
and viewpoint neutral. As such, these types of restrictions are
generally subject to strict scrutiny.
As discussed in Comment 2, the speaker implicated by this bill
appears to only be the State of California and not the citizens
of California, and therefore the courts are not likely to reach
the issue of content-neutrality as government speech is exempt
from First Amendment scrutiny.
4. This bill does not appear to allow for displays or images
in museums which serve educational and/or historical purposes
This bill seeks to prohibit the State from selling or displaying
the Confederate flag, or images of that flag, as specified,
unless the image appears in a book or digital medium that serves
an educational or historical purpose. Insofar as this bill is
recognizing that there may be legitimate purposes for which the
flag may be displayed as part of a historical or educational
conversation, the bill arguably overlooks the role of museums in
both those contexts. Under this bill, therefore, a state museum
that has a remnant of a Confederate flag or a photograph or
other display with an image of the flag as part of its exhibit
relating to the Civil War, would not be able to display that
flag. For example, the California State Military Department's
Military Museum would no longer be permitted to display the J.
P. Gillis flag, or the "Biderman" flag of California that is at
the California State Capitol Museum. According to the museum's
website:
On 4 July 1861, at Sacramento, California, Major J. P. Gillis
decided to celebrate not only America's independence from
Britain, but also that of the South from the North.
At about 10 p.m., after an exhibition of fireworks, he
unfurled a Confederate flag that had been wrapped around his
walking stick, and marched up the boardwalk before the St.
George Hotel at the corner of 4th and J Streets; most of those
present appeared to be Southern sympathizers, pleased with the
display of the flag.
AB 2444 (Hall)
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Not all those viewing this scene approved of it, however: J.
W. Biderman and Curtis Clark watched with anger. After Major
Gillis had demonstrated his feelings, Biderman and Clark
followed him; Biderman approached Gillis, caught him by the
throat with his left hand, and, with his right, tore the flag
from the stick, and put it in his pocket.
[ . . . ]
There seems to be no record of how or when, but the flag
became the property of the California State Capitol Museum.
The flag is made of silk, and is a variant of the first
national flag, the Stars and Bars, of the Confederacy. The
difference is, in place of the original seven stars in the
canton, there are 17 white 5-pointed stars. Inscribed on the
white bar in the middle is "Rebel Flag. Captured 4 July 1861.
By Jack Biderman."
The display at the museum states that this is "the only known
Confederate flag captured in California during the Civil War."
It is truly a Californian flag, of unique design. Designated
the "Biderman Flag," it might better be named for Major J. P.
Gills, its owner.
The incident that occurred on the streets of California's
capitol city on July 4, 1861, and the flag that brought it
about, are prophetic and symbolic of the secessionist movement
in the state: open advocation and defence of the cause, defeat
by a more powerful adversary, and all of this forgotten by
history with only a battered memento remaining.
While the State of California arguably should not be in the
business of selling reproductions of the Confederate flag or its
image, the Civil War and the Confederacy (including its flag)
are, however unfortunately, a part of U.S. history. At the same
time, however, it is important to recognize that the flag did
exist at one point in America's history and that its image can
serve both historical and educational purposes so as to help
facilitate conversations about important social and political
issues.
To address this issue and ensure that the flag or its image can
be used by the state for historical or educational purposes, the
following amendment is suggested:
AB 2444 (Hall)
Page 8 of ?
Suggested Amendment :
On page 2, lines 9-10 strike "appears in a book or digital
medium that"
5. Drafting error
To address a misplaced comma, the following amendment is
suggested:
Suggested Amendment :
On page 2, lines 8-9, strike comma after "tangible personal
property," and insert after "inscribed with such an image"
Support : 12th District of Omega Psi Phi Fraternity, Inc.;
California State Conference of the NAACP; over 40 individuals
Opposition : None Known
HISTORY
Source : Author
Related Pending Legislation : None Known
Prior Legislation : None Known
Prior Vote :
Assembly Floor (Ayes 72, Noes 1)
Assembly Appropriations Committee (Ayes 16, Noes 1)
Assembly Judiciary Committee (Ayes 10, Noes 0)
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