BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2015-2016 Regular Session
ACR 95 (Mathis)
Version: July 13, 2015
Hearing Date: June 28, 2016
Fiscal: No
Urgency: No
RD
SUBJECT
American Flag
DESCRIPTION
This concurrent resolution would declare that the American flag
is an inseparable part of California's rich history, tradition,
and culture and that the Legislature declares that the American
flag represents the values of freedom and liberty. This measure
would also call upon the state and local governments to prohibit
any government entity in the state from banning the American
flag from public property, including, but not limited to, public
schools, public colleges, public universities, state beaches,
public parks, public monuments, museums, and government offices.
BACKGROUND
Earlier this year, a University of California (UC) campus
student group narrowly passed a resolution that resolved to make
the Associated Students main lobby space as inclusive as
possible and, as a result, to ban the flags of any nation from
the lobby area of student government offices. (See Associated
Students of UC Irvine (ASUCI) R50-70
[as of Jun. 13, 2015].) Like resolutions passed in this body,
the student group's resolution made various statements
supporting the action. The statements included:
flags are a symbol of a nation, are used as decorations and
have a wide range of cultural significance;
flags are typically viewed as patriotic symbols of a single
ACR 95 (Mathis)
Page 2 of ?
nation, are often associated with government and military due
to their history and have a wide variety of interpretations;
flags not only serve as symbols of patriotism or weapons for
nationalism, but also construct cultural mythologies and
narratives that in turn charge nationalistic sentiments;
flags function specifically for a nation and people are
assimilated into national ideologies by deployment of this
cultural artifact;
flags construct paradigms of conformity and sets homogenized
standards for others to obtain which in this country typically
are idolized as freedom, equality, and democracy;
symbolism is interpreted differently by different groups or
persons based on individual unique experiences;
a common ideological understanding of the United [S]tates
includes American exceptionalism and superiority;
the American flag has been flown in instances of colonialism
and imperialism;
symbolism has negative and positive aspects that are
interpreted differently by individuals;
displaying a flag does not express only selective aspects of
its symbolism but the entire spectrum of its interpretation;
designing a culturally inclusive space is taken seriously by
ASUCI;
designing a culturally inclusive space aims to remove barriers
that create undue effort and separation by planning and
designing spaces that enable everyone to participate equally
and confidently;
designers should be careful about using cultural symbols as
the symbols will inherently remain open for interpretation;
a high-quality culturally inclusive space is essential in any
society that embodies a dynamic and multifaceted culture;
freedom of speech is a valued right that ASUCI supports; and
freedom of speech, in a space that aims to be as inclusive as
possible can be interpreted as hate speech. (Id.)
The ASUCI resolution triggered enormous controversy and
widespread news coverage, and even resulted in security concerns
for the students involved, prompting the cancellation of the
school's legislative council meeting in the immediate aftermath.
According to reports, by the next day, it had formed a trending
topic on Twitter and many students and faculty members across
the campus denounced the idea. Notably, the resolution has
never taken effect as the Executive Cabinet of the student
government promptly vetoed the ban on the display of flags
within two days of its passage. (See Shine and McGreevy, Does
ACR 95 (Mathis)
Page 3 of ?
UC Irvine Hate the American Flag? Not Exactly, Los Angeles Times
(Mar. 10, 2015)
[as of Jun.
13, 2016].)
Last year, two days after the ASUCI resolution was vetoed, a
Senate Constitutional Amendment, SCA 2 (Nguyen, 2015) was
introduced in this Legislature, seeking to put forth a
constitutional amendment for consideration by voters, which
would make the prohibition of a display of the U.S. flag on the
grounds of a UC, California State University, or California
Community College campus unconstitutional. That measure was
ultimately heard in this Committee, but was held without a vote,
pursuant to the author's request.
This measure now seeks to enact a concurrent resolution
declaring that the American flag is an inseparable part of
California's rich history, tradition, and culture, represents
the values of freedom and liberty, and calling upon the state
and local governments to prohibit any government entity in the
state from banning the American flag from certain public
property, including not only schools, but also state beaches,
public parks, public monuments, museums, and government offices.
CHANGES TO EXISTING LAW
Existing federal law provides that the flag should be displayed
daily on or near the main administration building of every
public institution and also provides that the flag should be
displayed during school days in or near every schoolhouse. (4
U.S.C. Sec. 6(e), (g).)
Existing California law requires the American and California
State flags be prominently displayed during business hours upon
or in front of the buildings or grounds of, or at specified
places, including: at the entrance or upon the grounds of each
campus of the University of California and at the entrance or
upon the grounds or upon the administration building of every
university, college, high school, and elementary school, both
public and private, within the State. (Gov. Code Sec. 431(c),
(d).)
Existing law provides that no person, private entity, or
governmental agency shall adopt any rule, regulation, or
ACR 95 (Mathis)
Page 4 of ?
ordinance, or enter into any agreement or covenant, that
prevents any person or private entity that would otherwise have
the legal right to display a U.S. flag on private property from
exercising that right, unless it is used as, or in conjunction
with, an advertising display. Existing law further provides,
however, that this shall not be construed to prevent a city,
county, or city and county from imposing reasonable restrictions
as to the time, place, and manner of placement or display of a
Flag of the United States when necessary for the preservation of
the public's health, safety, or order. (Gov. Code Sec.
434.5(b).)
Existing law prohibits a local government agency from adopting
any policy or regulation that prohibits or restricts an employee
of that agency from displaying a U.S. flag, or a pin of that
flag, on his or her person, in his or her workplace, or on a
local government agency vehicle operated by that employee.
Existing law further provides, however, that this shall not be
construed to prevent a local government agency from imposing
reasonable restrictions as to the time, place, and manner of
placement or display of a U.S. flag when necessary for the
preservation of the order or discipline of the workplace. (Gov.
Code Sec. 434.5(c).)
This resolution would state, among other things:
on June 6th, 1944, more than 160,000 American and Allied
troops carrying the "Stars and Stripes" landed along a 50-mile
stretch of heavily fortified French coastline in Normandy to
liberate Europe from the forces of Nazi Germany. More than
9,000 Allied soldiers were killed or wounded on D-Day to free
Europe from fascist occupation;
on February 23rd, 1945, five Marines and a Navy Corpsman
raised the American flag atop Mount Suribachi during the
Battle of Iwo Jima. It was a hard-fought victory over
imperialism at the cost of 5,900 U.S. service members killed
and 17,400 wounded against 23,000 Japanese army and naval
forces fighting from an entrenched network of caves, dugouts,
tunnels and underground installations; and
on July 20, 1969, astronauts Neil Armstrong and Buzz Aldrin
became the first human beings to set foot on the surface of
the moon, where they placed the American flag. There, the flag
has stood a decades-long vigil upon the Sea of Tranquility as
a gesture of peace for all mankind;
on September 11th, 2001, in the aftermath of the terrorist
attack which destroyed the World Trade Center, three New York
ACR 95 (Mathis)
Page 5 of ?
City firefighters, George Johnson of Rockaway Beach, Ladder
157, Dan McWilliams of Long Island, Ladder 157, and Billy
Eisengrein of Staten Island, Rescue 2, raised the American
flag over the smoldering ruins of Ground Zero where the Twin
Towers once stood. It was an act of defiance against those who
sought to break the unconquerable values of freedom and
liberty which the American flag represents; and
in 2015, the U.S. will provide $35.4 billion in foreign
assistance programs to more than 100 countries around the
world through the efforts of over 20 different government
agencies. These investments will further America's foreign
policy interests on issues ranging from expanding free
markets, combating extremism, and ensuring stable democracies,
to addressing the root causes of poverty, while simultaneously
establishing the American flag as the undisputed image of
global good will.
This measure would declare that the American flag is an
inseparable part of California's rich history, tradition, and
culture and represents the values of freedom and liberty. This
measure would call upon the state and local governments to
prohibit any government entity in the state from banning the
American flag from public property, including, but not limited
to, public schools, public colleges, public universities, state
beaches, public parks, public monuments, museums, and government
offices.
COMMENT
1. Stated need for the bill
According to the author:
In March 2015, the Legislative Council of the Associated
Students of the University of California, Irvine (ASUCI)
passed a resolution aimed at removing the American flag from
the lobby of a building housing the offices of student
government by banning all flags from the lobby. The vote
caused a public uproar, and the executive cabinet of ASUCI
vetoed the action days later. [ACR 95:]
Resolves that the American Flag is an inseparable part
of California's rich history, tradition, and culture;
additionally, it declares that the American Flag represents
the values of freedom and liberty.
ACR 95 (Mathis)
Page 6 of ?
Resolves that the Legislature calls upon the State and
local governments to prohibit any government entity in the
state from banning the American Flag from public property,
to include but not limited to: public schools, public
colleges, public universities, state beaches, public parks,
public monuments, museums, and government offices.
3. First Amendment implications of potential laws passed in
furtherance of this bill
Though it is unclear whether governmental entities are actively
banning the flag on public grounds in California, this
concurrent resolution would call upon the state and local
governments to prohibit any government entity in the state from
banning the American flag from certain public property,
including not only schools, but also state beaches, public
parks, public monuments, museums, and government offices.
At the outset, it should be noted that not all government
properties are treated the same for First Amendment analysis.
Some types of property are considered traditional public forums;
some, limited public forums; and yet others, nonpublic forums. A
public park, for example, is considered the most traditional
public forum. There, while government can impose reasonable
time, place, and manner restrictions, it cannot impose
content-based restrictions.
As a practical matter, flags convey messages and, in that
regard, can be as expressive as artwork or clothing. While the
state, as the speaker, can decide which speech to engage in, or
not engage in, when it picks what flag to fly upon public
property, this resolution calls for state and local laws that
would prohibit the banning of the American flag on certain
public property. First, it is not clear that the ultimate
"speaker" subject to any prohibition of flag banning would
necessarily be the government entity itself or might somehow
affect private individuals as well. By its terms, the
resolution calls for laws prohibiting "government entities" from
banning the flag. However, given that the author cites the
activities of a student group at a public university as the
impetus for this bill, the resolution could feasibly be
interpreted to call for broader application. Second, it is not
clear if this resolution seeks to encourage blanket prohibitions
against the banning of the flag, would include a prohibition of
ACR 95 (Mathis)
Page 7 of ?
any reasonable time, place and manner restrictions, or if this
resolution seeks to encourage limited prohibitions of blanket
bans. Lastly, it is not entirely clear that any law adopted
could lawfully prohibit the banning of the U.S. flag, and the
U.S. flag alone.
The U.S. Supreme Court has held on numerous occasions that at
the 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.) A law
regulating speech is content-neutral if it applies to all speech
regardless of the message. A law making all picketing, except
labor picketing, unconstitutional, would be content-based. A
law prohibiting anti-war protests would be both content-based
and a viewpoint regulation. So, too, would a law that prohibits
any speech about war (subject matter regulation). In contrast,
a law prohibiting the posting of all signs on public utility
poles would be content and viewpoint neutral. For example, a
problem could arise if a public park had to allow one group to
display the American flag (because of a law prohibiting the
banning of the flag), but deny another group's request to
display a different flag, which is feared to potentially incite
anger, violence, or political controversy. Whereas a policy
prohibiting the display of all flags in a public park by users
of the park would be an example of a content-neutral and
viewpoint neutral restriction, a policy prohibiting the display
of all flags except the American flag, would not.
Staff notes that it remains unclear whether a state or local law
prohibiting a government entity from banning the U.S. flag from
public property would have addressed the ASUCI example cited by
the author. (See Comment 1; see also Background for more on
that incident.) Moreover, consistent with the principles
outlined, above, it should be noted that the student resolution
that this measure is brought in response to, prohibited the
display of all flags, not just the American flag, in what
appears to be a content-neutral and viewpoint neutral manner,
from a specific area on the campus (a main lobby space in the
student union.
Ultimately, this resolution is, in some ways, more limited in
application and scope than SCA 2, which this Committee heard and
held last year at the author's request. SCA 2 sought to enact a
constitutional amendment that would provide that the display of
ACR 95 (Mathis)
Page 8 of ?
the U.S. flag shall not be prohibited on the grounds of a campus
of the University of California, the California State
University, or the California Community Colleges. In contrast,
this resolution is, by its nature, more of a symbolic statement,
setting forth a legislative aspiration to enact laws prohibiting
government entities from banning the flag on public properties.
3. First Amendment principles embodied by the American Flag
Aside from First Amendment implications discussed above, this
measure raises a question as to the need to address what the
marketplace of free ideas has already corrected. Indeed, the
fundamental rationale underlying principles of free speech and
free expression, which are embodied by the flag that this
measure seeks to defend, is that the free marketplace of ideas
can do a better job than the government in weeding out the good
ideas from the bad; that free and open public discourse will
allow those ideas based in truth to rise to the top, and cause
false ideas to falter. In the words of Chief Justice Oliver
Wendell Holmes in his famous Abrams v. United States dissent:
Persecution for the expression of opinions seems to me
perfectly logical. If you have no doubt of your premises or
your power and want a certain result with all your heart you
naturally express your wishes in law and sweep away all
opposition. To allow opposition by speech seems to indicate
that you think the speech impotent, as when a man says that he
has squared the circle, or that you do not care
whole-heartedly for the result, or that you doubt either your
power or your premises. But when men have realized that time
has upset many fighting faiths, they may come to believe even
more than they believe the very foundations of their own
conduct that the ultimate good desired is better reached by
free trade in ideas -- that the best test of truth is the
power of the thought to get itself accepted in the competition
of the market, and that truth is the only ground upon which
their wishes safely can be carried out. That at any rate is
the theory of our Constitution. (Abrams v. United States
(1919) 205 U.S. 616, 629-630 (J. Holmes, dissenting) (emphasis
added).)
In the instance of the ASUCI resolution, it in fact appears that
this free speech theory has prevailed, given that the resolution
was vetoed within two days of its passage. Allowing for open
discourse to continue on college campuses and correct itself as
ACR 95 (Mathis)
Page 9 of ?
it did at this university, is consistent with the ideals that
the American Flag symbolizes. Schools, and particularly public
universities, are in many ways intended to provide a safe
environment for young people to form and challenge their ideas
of the world and of right and wrong.
In support, a coalition of veterans groups writes that their
members "put their lives on the line serving this country under
the Red, White & Blue and do not believe that governmental
entities should disrespect or ban our nation's colors! Too many
lives have been lost fighting for this nation, for our freedom
and liberty under that flag."
Support : American G.I. Forum of California; American Legion,
Department of California; AMVETS, Department of California;
California Association of County Veterans Service Officers;
California State Commanders Veterans Council; Military Officers
Association of America, California Council of Chapters; Veterans
of Foreign Wars, Department of California; Vietnam Veterans of
America, California State Council
Opposition : None Known
HISTORY
Source : Author
Related Pending Legislation : None Known
Prior Legislation :
SCA 2 (Nguyen, 2015) See Background.
SB 1359 (Haynes, Ch. 73, Stats. 2002) prohibited a local
government agency from adopting any policy or regulation that
prohibits or restricts an employee of that agency from
displaying any emblem or depiction of the American flag on his
or her person, in the workplace, or an agency vehicle. This
bill included a time, place, and manner exception, specifically
stating that nothing in this provision shall be construed to
prevent a local government agency from imposing reasonable
restrictions as to the time, place, and manner of placement or
ACR 95 (Mathis)
Page 10 of ?
display of a U.S. flag when necessary for the preservation of
the order or discipline of the workplace.
Prior Vote :
Assembly Floor (Ayes 75, Noes 0)
Assembly Judiciary Committee (Ayes 9, Noes 0)
**************