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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          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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