BILL ANALYSIS �
AB 2444
Page 1
Date of Hearing: April 8, 2014
ASSEMBLY COMMITTEE ON JUDICIARY
Bob Wieckowski, Chair
AB 2444 (Hall) - As Introduced: February 21, 2004
As Proposed to be Amended
SUBJECT : Confederate Flag Sales: State Government
KEY ISSUE : Should the State of California be prohibited from
selling or displaying the Confederate Flag or any items
containing an image of the confederate flag?
SYNOPSIS
This bill apparently originated with the author's discovery that
a gift shop in the State Capitol Building sold confederate
currency which contained an image of the Confederate flag.
According to the author, the Confederate flag is a "symbol of
racism, exclusion, oppression, and violence toward many
Americans," and its history is directly related to the defense
of slavery. California, the author reminds us, was admitted as
a "free state" in 1850 and its history is directly linked to the
expansion of liberty and equal protection for all. This bill,
therefore, would prohibit the State of California from selling
or displaying the Confederate flag or any item that contains an
image of the Confederate Flag, unless the image appears in a
book for historical or educational purposes. As originally
introduced, this bill would have prohibited "a person" from
selling a Confederate flag on state-owned or state-operated
property. However, such a clearly content-based - and even
viewpoint-based - restriction would most likely have been found
by the courts to have violated the First Amendment of the United
States Constitution. Courts have repeatedly held that the
Confederate flag is symbolic speech protected by the First
Amendment, and the mere fact that the flag was sold instead of
only displayed or given away would not cause it to lose its
constitutional protection. A state is certainly free to prevent
the sale of goods on state property, but once it opens any state
property up to the sale of goods the courts have found that it
cannot prevent a private person from selling a good solely
because it disagrees with the message. Therefore, the author is
prudently amending the bill in this Committee so that it will
only prohibit the state (as opposed to a person) from selling or
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displaying the Confederate flag. Such a restriction, even
though content-based, should not raise a valid constitutional
objection. The following bill summary and analysis reflects the
bill as proposed to be amended. The bill is supported by the
California NAACP and several individual letter writers. There
is no known opposition to this bill.
SUMMARY : Prohibits the State of California from selling or
displaying a Confederate Flag, or images thereof, except as
specified.
1)Prohibits the State of California from selling or displaying a
Confederate flag or tangible personal property inscribed with
the image of a Confederate flag, unless the image appears in a
book for educational or historical purposes.
2)Defines "sell" to mean to transfer title or possession,
exchange, or barter, conditional or otherwise, in any manner
or by any means whatsoever, for consideration.
EXISTING LAW provides that no law shall abridge freedom of
speech, and guarantees every person the right to freely speak,
write, and publish his or her sentiments on all subjects, being
responsible for the abuse of those rights. (California
Constitution, Article 1, Section 2; United States Constitution,
Amendment I, as applied to the states through Amendment XIV.)
FISCAL EFFECT : As currently in print this bill is keyed
non-fiscal.
COMMENTS : This bill reportedly originated with the author's
dismaying discovery that a gift shop in the State Capitol
Building sold confederate currency which contained, among other
things, an image of the Confederate flag. According to the
author, the Confederate Flag is a "symbol of racism, exclusion,
oppression, and violence toward many Americans," and its history
is directly related to the defense of slavery, whereas
California was admitted as a "free state" and its history is
directly linked to the expansion of liberty and equal protection
for all. This bill, therefore, prohibits the State of
California from selling or displaying the Confederate Flag or
any item that contains an image of the Confederate Flag, unless
the image appears in a book for strictly historical or
educational purposes.
Constitutional Considerations: The Selling of a Confederate Flag
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as Protected 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 "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.) A
law that singles out the Confederate flag would therefore most
likely be considered by the courts not only content-based
discrimination, but "viewpoint discrimination," which the U.S.
Supreme Court has described as the most "egregious form of
content discrimination." (Rosenberger v. Rector & Visitors of
the University of Virginia (1995) 515 U.S. 819, 825.) That a
law or regulation only restricts the "sale" of expressive items
does not make the law or regulation any more palatable
constitutionally; as the U.S. Court of Appeal for the Ninth
Circuit has held, messages "do not lose their constitutional
protection simply because they are sold rather than given away."
(Perry v. Los Angeles Police Dept. (1997) 121 F3d 1365, 1368.)
Content-Based Restrictions under the First Amendment : Perhaps
the most important threshold question in beginning any First
Amendment analysis is to ask whether the restricted speech is
"content-based" or "content-neutral." Content-based
restrictions are "presumptively invalid." (R.A.V. v. City of
St. Paul (1992) 505 U.S. 377, 382.) "Content-based"
restrictions can either prohibit speech because of its
"viewpoint" or because of its "subject matter." For example, a
law that prohibited any discussion of abortion would be a
content-based restriction based on subject matter. A law that
prohibited only speech that was "pro-life" would be a
content-based restriction based on a particular viewpoint. As
noted above, viewpoint discrimination is deemed to be the worst
form of content-based restriction and only rarely passes
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constitutional muster. For a regulation to be
"content-neutral," the regulation must be done for a purpose
completely unrelated to the content of the speech, even though
it may incidentally restrict expressive speech. For example, a
regulation that sought to prohibit excessively loud music in a
park is content-neutral even if it is used against someone who
is expressing a specific political message. (Ward v. Rock
Against Racism (1989) 491 U.S. 781; see also Erwin Chemerinsky,
Constitutional Law (2006, 3d Ed.) 932-941.) Thus restrictions
on the selling of a Confederate flag would, at the very least,
be found to be a content-based restriction, and would most
likely be deemed a form of viewpoint discrimination that rarely
passes the test of constitutionality.
Cases Considering Restrictions on Displaying the Confederate
Flag : In support of this measure, the author cites the recent
case of Hardwick v. Heyward (2013) 711 F.3d 426. In Heyward,
the court ruled that a school district did not violate the First
Amendment by prohibiting a student from wearing a t-shirt
depicting the Confederate flag. However, while student speech
is protected by the First Amendment (students do not shed their
First Amendment rights at the schoolhouse door, as Justice
Brennan famously put it), the courts have nonetheless recognized
that schools have more power to limit expression than would
other government entities because of their reasonable need to
prevent disruption of their educational function. (Tinker v.
Des Moines (1969) 393 U.S. 503.) In Heyward, recent racial
tensions at the school, the court found, had led school
officials to reasonably conclude that permitting a student to
wear a T-shirt with a Confederate flag would exacerbate those
tensions, perhaps even leading to violence. While Heyward shows
that the right to display a Confederate flag is not absolute,
the case would not appear to be dispositive in evaluating the
constitutionality of the introductory version of this measure.
While school districts specifically have been found to
constitutionally restrict speech in order to prevent serious
disruptions to the school's educational mission, selling flags
in the Capitol gift shop might not be found by the courts under
court decisions such as Heyward to likely create similar
disruptions to an essential government function such as student
instruction.
Government Speech and the Confederate Flag : Restricting private
persons from selling or displaying Confederate flags on
government property - insofar as the state otherwise permitted
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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
bill, as proposed to be amended, would only prevent the state
from selling or displaying the Confederate flag - not private
persons. And this approach appears to be consistent with cases
such as Sons of Confederate Veterans v. City of Lexington,
Virginia (2013) 722 F.3d 224, 227. In that case, in 2010, the
Sons of Confederate Veterans (SVC) requested permission from the
Lexington (Virginia) City Council to use flag standards affixed
to light poles during a "Lee-Jackson Day" parade honoring Robert
E. Lee and Stonewall Jackson. The City had previously permitted
other private groups - including a private college and college
fraternities - to use the standards to fly their respective
school flags and banners. Although the City granted the request
to SVC on this occasion, at its subsequent city council meeting
it enacted an ordinance declaring that city flag standards could
only be used to display the flag of the United States, the flag
of the Virginia Commonwealth, or the flag of the City of
Lexington.
SVC filed an action alleging that the ordinance violated, among
other things, the First Amendment. The court held that the flag
standards were only a "designated public forum," meaning they
were government property open to private speech only so long,
and to the extent that, the government permitted it. Once a
forum has been designated a public forum and made open to
speakers, the government cannot chose between speakers based on
the content of their speech. However, the court ruled, just as
a government can open a designated public forum, it can also
close a designated public forum. Once the flag standards were
no longer a designated public forum, the government was free to
decide that the flag standards could only be used for the
official flags of the U.S., Virginia, and Lexington. The City
was "free to reserve its equipment purely for government
speech," and apparently the government no longer chose to speak
the anachronistic language of the Confederacy. (Id. at 232.)
California May Choose What Messages it Wants (or Does Not Want)
to Convey : The City of Lexington case - and the case law upon
which it relied - certainly suggests that a government, as a
speaker, is free to choose what kinds of messages it wants to
communicate and what kinds of messages it does not want to
communicate. This bill seems to clearly conform to that
principle. (See also e.g. Rust v. Sullivan, 500 U.S. 173,
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holding a government may elect to fund certain kinds of messages
but not others.)
The Bill Makes Exceptions for Historical or Educational
Purposes : As proposed to be amended, the bill would clarify
that the prohibition on selling items that contain the image of
the Confederate flag would not apply to images of the flag that
appear in books for a strictly educational or historical
purpose.
PROPOSED AUTHOR'S AMENDMENTS : The author wishes to take the
following amendments in this Committee:
- On page 1 delete lines 2-4 and insert:
The State of California may not sell or display a Confederate
flag or tangible personal property inscribed with the image of a
Confederate flag unless the image appears in a book that serves
an educational or historical purpose.
- On page 2 delete lines 1 through 3
- On page 2 line 6 delete "'Transfer possession' includes
only" and delete lines 7 through 9.
ARGUMENTS IN SUPPORT : California NAACP supports this bill
because "the Confederate flag is a symbol of racism, exclusion,
oppression, and violence towards many Americans and particularly
African Americans. Its symbolism and history is directly linked
to the enslavement, torture and murder of millions of African
Americans through the mid-19th century. Its public display
usually is an intentional display of racial hatred designed to
instill fear, intimidation and a direct threat of violence
towards others." The California NAACP concludes that "AB 2444
is smart public policy and a simple expression of California's
strong compelling interest in promoting racial harmony and
sending a strong message that California will not tolerate
marketing hatred toward others in any taxpayer supported state
facility."
REGISTERED SUPPORT / OPPOSITION :
Support
California NAACP
Several individuals
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Opposition
None on file
Analysis Prepared by : Thomas Clark / JUD. / (916) 319-2334