BILL ANALYSIS Ó
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CONCURRENCE IN SENATE AMENDMENTS
AJR
26 (Weber)
As Amended September 1, 2015
Majority vote
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|ASSEMBLY: |75-0 |(August 17, |SENATE: |40-0 |(September 4, |
| | |2015) | | |2015) |
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Original Committee Reference: JUD.
SUMMARY: Encourages Congress to ban government use or display
of the confederate flag on federal property and encourage the
states to ban Confederate symbolism in state flags, seals, and
symbols. Specifically, this resolution:
1)Makes various findings and declarations relating to the
history of race relations in the southern United States in the
antebellum South, the origins of the Civil War, the subsequent
symbolism of the Confederate Battle Flag from the period of
Reconstruction to the Civil Rights era of the 1950s and 1960s,
the rise of Neo-Confederate hate groups in contemporary
America, and the recent shootings in Charleston, South
Carolina, and the resulting calls to remove the Confederate
Battle Flag from the South Carolina capitol building and
through the southern United States.
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2)Resolves, in light of the above findings and declarations, the
following:
a) That the Legislature of California encourages the United
States Congress to identify the states that have a
Confederate symbol embedded into their state's flag.
b) The Legislature memorializes the United States Congress
to encourage states to ban use of Confederate States of
America symbolism and seals from all state flags, seals, or
symbols.
c) That the Legislature memorializes the United States
Congress to ban the sale and display of any Confederate
flag on federally owned properties and buildings and to
urge those states that sell or display any such flag at
their capitols to have the flag removed.
d) That the Legislature encourages the United States
Congress to encourage businesses to urge their states to
take down any Confederate flag from their capitols.
e) That the Legislature encourages the donation of any
effects representing the former Confederate States of
America to local, state, and national museums.
f) That the Chief Clerk of the Assembly shall transmit
copies of this resolution to specified state and federal
officials.
The Senate amendments make technical corrections.
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EXISTING LAW:
1)Holds that when the government speaks, it is not barred by the
Free Speech Clause from determining the content of what it
says. A government is generally entitled to promote a
program, espouse a policy, or take a position. (Pleasant
Grove City v. Summum (2009) 555 United States 460; Walker v.
Texas Division, Sons of Confederate Veterans (June 18, 2015)
135 S. Ct. 2339.)
2)Prohibits 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, digital medium or state museum that serves
an educational or historical purpose.
FISCAL EFFECT: None
COMMENTS: The tragic shootings at an African Methodist
Episcopal church in Charleston, South Carolina, have prompted
some national soul searching about the propriety of Confederate
symbols in the public square. As is well known, the shooter was
a white supremacist who, literally, wrapped himself in the
Confederate Battle Flag in one of his social media postings.
(He was also, apparently, a fan of the apartheid regime in South
Africa.) After long and passionate debates in both houses of
the South Carolina legislature, Governor Nikki Haley signed
legislation on July 9, 2015, requiring the removal of the flag.
(The Confederate Battle Flag was removed from the top of the
South Carolina capitol dome in 2000, where it had flown since
1962, but it remains on the capitol grounds near a Confederate
soldier's memorial.) According to the author, to whatever
extent the flag may have once been a symbol of southern
secession, it has since been used by Neo-Nazis,
Neo-Confederates, the Ku Klux Klan and other hate groups to
elicit fear and promote hate and intolerance toward people of
color, especially African Americans. This resolution,
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therefore, calls upon Congress to ban the sale and display of
the Confederate flag on federal property and encourage the
states to remove Confederate symbols from state buildings,
flags, and seals. This resolution would encourage that any
Confederate flags or other effects be donated to local, state,
and national museums.
Constitutional Considerations: Individual vs Government Speech.
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 a symbol of "states' rights." Whatever political,
ideological or cultural belief one attaches to the Confederate
flag, the First Amendment has long been held to protect one's
right to express it. Nor does it matter, constitutionally, that
some find the Confederate 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.)
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 therefore likely be a form of content-based
viewpoint discrimination that would be held to be invalid.
However this resolution only calls upon Congress to prohibit the
display of a Confederate flag on federal property and encourage
the states to impose similar bans and remove Confederate symbols
from existing flags and seals. It does not propose to limit the
speech of any individual; it merely affirms the government's
right to speak and shape the message that it wishes to convey.
In the session that just ended, the United States Supreme Court
once again upheld the government's right to dissociate itself
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from Confederate symbols. The Court ruled that the Texas
Department of Motor Vehicles did not violate the free speech
clause of the First Amendment when it rejected the Sons of
Confederate Veterans application for a "specialty" license plate
that included an image of the Confederate Battle Flag. The
Court reasoned that because license plates are issued by the
government and bear the name of the state and often include
mottos that honor or promote the state, they have historically
been seen as representing speech that the state endorses. The
government, as a speaker, therefore, has the right to control
its messages. The Court held that when the government speaks,
it is not barred by the free speech clause from determining the
content of what it says. A government is generally entitled to
promote a program, espouse a policy, or take a position.
(Walker v. Texas Division, Sons of Confederate Veterans (2015)
135 S. Ct. 2239, citing Pleasant Grove City v. Summum (2009) 555
U. S. 460.)
This resolution would seem to raise even less of a
constitutional issue than policies at issue in the Texas and
Lexington cases discussed above. Those cases presented a
colorable conflict between the government's right to convey its
preferred message and the ability of individuals to use
government property to convey a different or even contrary
message. This resolution, however, does not present any
competing individual free speech claim.
Analysis Prepared by:
Thomas Clark / JUD. / (916) 319-2334 FN: 0002004
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