BILL ANALYSIS Ó AJR 26 Page 1 CONCURRENCE IN SENATE AMENDMENTS AJR 26 (Weber) As Amended September 1, 2015 Majority vote -------------------------------------------------------------------- |ASSEMBLY: |75-0 |(August 17, |SENATE: |40-0 |(September 4, | | | |2015) | | |2015) | | | | | | | | | | | | | | | -------------------------------------------------------------------- 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. AJR 26 Page 2 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. AJR 26 Page 3 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, AJR 26 Page 4 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 AJR 26 Page 5 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 AJR 26 Page 6