State agencies cannot fly the Confederate flag – but Californians still can

The California Attorney General has ruled that a painting was wrongly banned at The Big Fresno Fair in 2015 for displaying the Confederate flag.

While a state law passed in 2014 prohibits state agencies from displaying or selling the flag, a new settlement reached this week “makes it clear that the law does not apply to the speech or the acts of private citizens,” according to the Center for Individual Rights.

CIR, based in Washington, D.C., filed a lawsuit last year on behalf of Timothy Desmond of Fresno after his painting of a Civil War scene was not allowed to be included in the fair’s art competition due to the depiction of the Confederate flag.

The painting of the battle scene was entirely in black and white, except for the red and blue flag – a controversial symbol due to its associations with slavery and racism.

State fair officials said the law that bans state organizations from displaying the flag meant that the painting could not be displayed at the public event.

In response to Desmond’s lawsuit, state officials said the ban on the painting was due to a mistake, and allowed it to be displayed at The Big Fresno Fair last year.

Desmond pushed the suit, though, to ensure the law “would not be used in an unconstitutional manner again,” according to CIR.

The law was spearheaded by former state Sen. Isadore Hall III, who called the flag “a symbol of hate” that should not be promoted by any branch of government.

CIR President Terry Pell said in a statement Tuesday that the settlement shows a “refreshing commitment to the principle of free speech” by Attorney General Xavier Becerra.

“The First Amendment is clear: the state may not ban the expression of certain points of view simply because some find them distasteful. Freedom of speech has costs, whether in the form of hurt feelings of those who are forced to listen or the cost of police necessary to protect against the riots that sometimes result,” Pell said. “Today, some public officials wonder whether controversial speech is deserving of the cost of protecting it. But either we protect speech or it is not truly free.”

Michael Risher, senior staff attorney with the American Civil Liberties Union of Northern California, applauded the decision, saying despite concerns about the flag’s meaning, the state cannot limit individuals’ right to free speech.

“On the one hand, it’s completely proper for California to prohibit itself from displaying the Confederate battle flag, which is, in fact, a symbol for many of white supremacy and racism,” Risher said. “It would not be proper for the state of California to prohibit private people from displaying it. It’s contrary to the principles of free speech.”

This story was originally published May 2, 2017 at 5:24 PM with the headline "State agencies cannot fly the Confederate flag – but Californians still can."