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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