The California state assembly has passed a new law that will be prohibit the selling or displaying items with an image of the Confederate flag. We have previously discussed the disciplining of students and others over the display of this flag as protected speech. In the same way, this bill raises serious constitutional questions and could trigger a court fight.
Assemblyman Isadore Hall, D-Compton secured a 72-1 vote in favor of the new law. It would not prohibit the display in educational or museum settings. However, it would prevent people from displaying the flag on state property which would presumably include parks. Hall said that he took the action after his mother saw replica Confederate money being sold at the state Capitol gift shop.
The amended bill is quite vague on key terms. It states:
SECTION 1. Section 53.5 is added to the Civil Code, to read:
53.5. (a) The State of California may not sell or display 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 that serves an educational or historical purpose.
(b) For purposes of this section, “sell” means to transfer title or possession, exchange, or barter, conditional or otherwise, in any manner or by any means whatsoever, for consideration. “Transfer possession” includes only transactions that would be found by the State Board of Equalization, for purposes of the Sales and Use Tax Law, to be in lieu of a transfer of title, exchange, or barter.
This removes problematic language in the original version but leaves a lot of questions. Here is the original language:
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 53.5 is added to the Civil Code, to read:
53.5. (a) A person The State of California may not sell a Confederate flag or display the Battle Flag of the Confederacy, also referred to as the Stars and Bars, or any similar image, or tangible personal property inscribed with the such an image of a Confederate flag on property owned or operated by the state unless the image appears in a book that serves an educational or historical purpose.
(b) For purposes of this section, all of the following apply:
(1)“Person” means any individual, partnership, firm, joint stock company, corporation, limited liability company, association, trust, estate, or other legal entity.
(2)“Sell” section, “sell” means to transfer title or possession, exchange, or barter, conditional or otherwise, in any manner or by any means whatsoever, for consideration. “Transfer possession” includes only transactions that would be found by the State Board of Equalization, for purposes of the Sales and Use Tax Law, to be in lieu of a transfer of title, exchange, or barter.
Hall insisted that the flag is a symbol of racism that should not be allowed to be displayed. The Southern flag is clearly insulting to many people due to its historical associations. However, it is also a simple of Southern heritage and sacrifice. Robert E. Lee himself identified with the flag while rejoicing in the end of slavery. He stated:
In this enlightened age, there are few I believe, but what will acknowledge, that slavery as an institution, is a moral & political evil in any Country.
So far from engaging in a war to perpetuate slavery, I am rejoiced that slavery is abolished. I believe it will be greatly for the interests of the South. So fully am I satisfied of this, as regards Virginia especially, that I would cheerfully have lost all I have lost by the war, and have suffered all I have suffered, to have this object attained.
Respected scholars like Civil War historian Shelby Foote have noted that the flag traditionally represented the South’s resistance to Northern political dominance. As discussing in PBS interview, he was sensitive to how many of his friends viewed it as a symbol of racism but he did not share that view. Others view it as a symbol of state’s rights or Southern culture or opposition to speech codes or politically correct sentiments. The point is that, if some flags are allowed, there are a variety of symbols that are viewed as offensive by different groups.
So the question is what happens when people want to display this symbol while others are displaying other flags viewed negatively by other groups from Free Tibet to the PLO to Israel to China. It sounds a lot like content-based censorship.
The bill was amended to exclude non-government employees and businesses from the ban to address some of these concerns. It would also not ban the display for educational or historical reasons in textbooks. To the extent that it only affects government speech, the state is on stronger ground to be sure, but I am still unclear on the wide array of displays organized by the government with citizens or groups. Even with the wise exclusions, there would appear a myriad of circumstances where state employees would be presented with a conflict in barring the display not just on a flag but in other forms containing this symbol. Those specific conflicts could present an interesting challenge to the new law.
Source: CBS
They do dumb stuff like this because they don’t know how to adequately govern a state. Throw idiots like this out of office and elect people that will do something about a fairer tax situation, a better education system, a better transportation system. All legitimate government functions, not more action for the thought police.
Wait, I take that back, some are flying the PC flag. It has the Constitution w/ a diagonal slash through it.
The state of Ca. is on the brink of bankruptcy and their idiot legislators are wasting millions of dollars[this will be litigated] on blatantly unconstitutional legislature. However, this is a “teachable moment.” That this law was passed 72-1, in an epic PC vote, shows just how pernicious PC is and how it must be stomped back into the swamp from whence it came. Good to see folks here got their minds right on this one.
The flag belongs in a museum. Any Southern heritage symbolism has been lost as any and all hate groups adopt it and fly it. Any self respecting Southerner sees what has become of the flag. Take it down and put it in the “Museum of the South”. Let hate groups create their own symbol of hatred and let the Stars and Bars mean what it was intended for-Battle Flag in the Civil War. It is history not heritage, thanks to the hate groups..
What Mike Appleton said.
Is human madness unbounded and unlimited? Is, as in the first edition of the Encyclopædia Brittainnica, melancholy the primary disease, and madness the augmentation thereof?
Does successful effort directed toward erasing deemed-undesirable aspects of the historical record ever accomplish anything other than promoting recidivism regarding deemed-undesirable events?
How can humanity ever actually learn how to avoid undesirable conduct if the record of it is incessantly erased?
Hitler loved his dog and white aryan children. The white slave owners loved their dogs and white children. There is no difference except in scale. Evil is Evil. The confederate flag should be treated the same way as the nazi flag. Pride in battle means nothing if you are fighting a fight for evil, what ever you disguise it as.
Concerning flags generally, I don’t see why people get into such a fuss about them. They just represent ideas, associations, or locations. If a flag is to be curtailed by a legislature, why not stop there and label vexillogists who study certain flags as being as evil as the flag itself. Both are unreasonable in my view.
I remember one time where a friend and I were trading with two black marketeers in our hotel room in Moscow in the mid 80’s. My buddy wanted a Soviet flag so the guy went out and came back with a flag a couple hours later. I think he grabbed it from some building because it had official bunting on it.
A few years later, my friend rented an apartment with a window facing the third busiest road in town. He hung the flag so it occupied the entirety of one of his windows. I thought it was funny, especially driving past his place in the evening and seeing the red glow in the window. Understand this was during the cold war, an enemy flag, and within a conservative town. Nobody complained or cared, it wasn’t that big of a deal.
If they want to ban something lets ban the Mexican flag.
This is the type of bill that few politicians, even those who might object to it on constitutional grounds, would vote against for fear of political backlash. Hence, it goes to the governor’s who then immediately signs it.
Part of the amended bill reads:
“53.5. (a) The State of California may not sell or display the Battle Flag of the Confederacy, also referred to as the Stars and Bars..”
The Battle Flag and the Stars and Bars are two different flags. The Stars and Bars was the first national flag. The Battle Flag in the bill could refer to as what most people think of as the “confederate flag” is either the battle flag of the Army of Tennessee or the Second Confederate Navy Jack.
There is a square battle flag that is the of the Army of Northern Virginia.
I wonder if the state would object to the flying of the flag of Mississippi on a state property?
I agree this is probably unconstitutional but how it is interpreted as this law seems only to apply to the state of California is an issue I don’t know much about.
The element about an exception that it could be used in a book for educational purposes is very limiting. DVDs or other media seem not to be mentioned and books could be replaced by other media in academic environments.
This just seems like another example of a knee jerk legislative action, especially in this example where one person complained and the legislature got ahead of itself before thinking this one out.
Shelby Foote is wrong. The Confederate Flag is the flag of traitors who seceded to protect slavery. I know southerners love to argue how patriotic they are while worshiping Confederate generals and flying the Confederate flag but it is bunk. There is no reason to allow such flags to be placed on public property. Unfortunately, this legislation will probably generate so much “patriotic” backlash that it may do more harm than good.
Even in the Rockies, its quite often my best selling flag. You have to admit its pretty!
If the limit is placed upon the State, fine.
If the limit is placed against the People, not cool.
Mike Appleton is correct
http://www.leginfo.ca.gov/const-toc.html
CALIFORNIA CONSTITUTION
ARTICLE 1 DECLARATION OF RIGHTS
SEC. 2. (a) Every person may freely speak, write and publish his or
her sentiments on all subjects, being responsible for the abuse of
this right. A law may not restrain or abridge liberty of speech or
press.
Hear, Hear!
As the ban applies only to speech by the State of California, I’m skeptical that the law violates the First Amendment. An intolerant law nonetheless that would only serve to engender backlash from opponents of political correctness.
The proposed law is unconstitutional. Period.
An improper law that will do nothing to deter the racists who want to display it. I see it as an infringement of the First Amendment rights and frankly a waste of time.
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California Assembly Moves To Ban Sale Or Display Of Confederate Flag
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