BILL ANALYSIS                                                                                                                                                                                                    Ó





                             SENATE JUDICIARY COMMITTEE
                         Senator Hannah-Beth Jackson, Chair
                             2015-2016  Regular  Session


          SCA 2 (Nguyen)
          Version: April 20, 2015
          Hearing Date:  July 14, 2015
          Fiscal: No
          Urgency:  No
          RD   


                                        SUBJECT
                                           
                 Public postsecondary education:  United States flag

                                      DESCRIPTION 

          This resolution proposes a constitutional amendment that would  
          provide that display of the Flag of the United States of America  
          on the grounds of a campus of the University of California, the  
          California State University, or the California Community  
          Colleges shall not be prohibited.

                                      BACKGROUND  

          Earlier this year, a University of California (UC) campus  
          student group narrowly passed a resolution that resolved to make  
          every effort 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. 1, 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  
            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;








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           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 spaces 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 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  
          UC Irvine Hate the American Flag? Not Exactly, Los Angeles Times  
          (Mar. 10, 2015)  
           [as of Jun.  
          23, 2015].) 







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          Two days after the ASUCI resolution was vetoed, this measure was  
          introduced, 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.  

                                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).) 

           This resolution  would, contingent upon voter approval, amend the  
          California Constitution to provide display of the Flag of the  
          United States of America shall not be prohibited on the grounds  
          of a campus of the University of California, the California  
          State University, or the California Community Colleges.
           
                                        COMMENT
           
          1.    Stated need for the bill  

          According to the author: 

            On Thursday, March 5th the Legislative Student Council of the  
            Associated Students of UC Irvine (ASUCI) passed Resolution  
            50-70 entitled "Flags and decoration adjustment for  
            inclusivity," which prohibited the display of any flag in the  
            student government building. The resolution's preamble placed  
            extensive emphasis on the American Flag, labeling it as a  
            symbol of hate speech. UCI's Chancellor Howard Gillman swiftly  
            issued a statement defining this resolution as "outrageous and  







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            indefensible."  On Saturday, March 11th, the Executive Cabinet  
            of ASUCI vetoed this resolution. However, the ASUCI  
            legislature still retains the authority to overturn the veto  
            with a 2/3 majority vote. Although public comments from the  
            administration deem it unlikely that this veto will be  
            overturned, this unfortunate event draws attention to the fact  
            that similar actions could easily be repeated without further  
            action. 

            Senate Constitutional Amendment 2 would provide that the  
            display of the United States Flag on the grounds of a campus  
            of the University of California, the California State  
            University, or the California Community College shall not be  
            prohibited.

          2.    First Amendment implications  

          This constitutional amendment seeks to enact that no University  
          of California, California State University, or California  
          Community College can prohibit the display of the American flag  
          at any time or under any circumstances.  As a practical matter,  
          flags convey messages and, in that regard, can be as expressive  
          as artwork or clothing.  While this measure is focused on the  
          American flag, the impact it might have is not necessarily as  
          limited.  By making it unconstitutional to prohibit the display  
          of the U.S. flag in any instance, this measure could  
          inadvertently force these public institutions to also grant all  
          other requests to display more controversial flags, if a denial  
          of those requests would constitute a content-based restriction  
          in violation of the First Amendment.  

          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.  Here, a problem  
          could arise if a public school were to allow one student group  







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          to display the American flag in a common area, but deny another  
          group's request to display a different flag.  Whereas a policy  
          prohibiting the display of all flags in a particular common area  
          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. 

          Consistent with those principles, 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.  

          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  







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            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  
          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.  

          A coalition of veterans, including the American  
          Legion-Department; 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; VFW-Department of  
          California; and Vietnam Veterans of America-California State  
          Council, writes in support of the resolution: "As veterans, we  
          put our lives on the line for the United States of America and  
          for the freedoms that our flag represents.  It is appalling the  
          anti-Americanism and hatred of our nation and its values that is  
          fomented on our college campuses, especially those which are  
          funded by American taxpayers.  If Americans are taxed to pay for  
          the school, the school is in America, then they should not ban  
          our flag. "

           
          Support  :  American Legion-Department; AMVETS-Department of  
          California; California Association of County Veterans Service  
          Officers; California State Commanders Veterans Council; City  
          Council of the City of Buena Park; City Council of the City of  
          Cypress; City Council of the City of Garden Grove; City Council  
          of the City of Huntington Beach; City Council of the City of  
          Irvine; City Council of the City of La Habra; City Council of  
          the City of Laguna Niguel; City Council of the City of Los  
          Alamitos; City Council of the City of Mission Viejo; City  
          Council of Tustin; City of San Clemente; City of Westminster;  
          Military Officers Association of America, California Council of  
          Chapters; VFW-Department of California; Vietnam Veterans of  
          America-California State Council

           Opposition  :  None Known 

                                        HISTORY







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           Source  :  Author

           Related Pending Legislation  :   None Known 

           Prior Legislation :  None Known 

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