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.